Mitsubishi Motors Australia Ltd & Anor v Begovic

[2023] HCATrans 097
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Melbourne No M17 of 2023

B e t w e e n -
MITSUBISHI MOTORS AUSTRALIA LTD (ACN 007 870 395)
First Appellant
NORTHPARK BERWICK INVESTMENTS PTY LTD (ACN 075 238 121)
Second Appellant
and
ZELKO BEGOVIC
Respondent

GAGELER J
GORDON J
STEWARD J
GLEESON J
JAGOT J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON WEDNESDAY, 2 AUGUST 2023, AT 10.03 AM
Copyright in the High Court of Australia
MR B.W. WALKER, SC:   May it please the Court, I appear with my learned friend, MR B.M. GIBSON, for the appellants. (instructed by Thomson Geer Lawyers)
MR C.A. MOORE, SC:   May it please the Court, I appear with my learned friend, MR J.T. GOTTSCHALL, for the respondent. (instructed by Shine Lawyers)
GAGELER J:   Thank you, Mr Moore. Mr Walker.
MR WALKER:   May it please the Court. Your Honours, this case raises the application of the consumer protection standard, proscribing misleading and deceptive conduct in trade and commerce, relevantly, section 18 of the ACL. As it ought be deployed, or should be understood to have a limited application concerning conduct which is in compliance with, indeed mandated by, another law, in this case, under the Motor Vehicle Standards Act 1989.
As your Honours can see from proposition 1, we place to the forefront that in the proper understanding of the relation between the general proscribing of the unfair trade practice of misleading and deceptive conduct in trade or commerce, the significance of a specific requirement in relation to the particular arm of trade in question, which in this case happens to compel certain conduct for anybody who wishes to engage in trade.

At the heart of it, therefore, is the same kind of approach which, of course, on its own facts and with somewhat different statutory regimes, lay behind the reasoning of Sir Anthony Mason in the GMAC Case and in particular his Honour’s reference to the unexpressed assumption concerning the application of the general unfair practice proscription with respect to a specific compelled form of conduct at 137 CLR 561.

Now, the fuel consumption label, to move to our proposition 2, is one which can be seen to be the outcome of what I regret to tell your Honours is a rather complex interlocking set of provisions by which the label, with which your Honours might be familiar from ordinary life, comes to be affixed to the windscreen of vehicles. Could I ask your Honours please, in the bundle of authorities, to turn to page 115.

GORDON J:   Could you just say what that is, Mr Walker? Because we have hard copy legislation, it might be that we will be using that, if you would not mind.
MR WALKER:   Yes, understandably, it is the Motor Vehicles Standards Act 1989.
GORDON J:   Thank you.
MR WALKER:   In its section 5, the definition section, could I draw to attention the definition of a “national standard”, which means:
a vehicle standard determined under section 7.

To which I am about to come. But while on that pair of pages, could I draw to your attention what is in fact a pivotal expression in this case, namely “nonstandard”, which:
in relation to a road vehicle . . . means not complying with the national standards –

Could I then ask your Honours to turn, in the same Act, several pages over to section 7, which is that which is called up by the definition of “national standard”:
The Minister may, by legislative instrument, determine vehicle standards –

Then, under section 9:
The Minister may, by legislative instrument, determine procedures and arrangements for determining whether road vehicles . . . comply with this Act –

et cetera. Then, there is a reference, among other things, to “testing”. The instrument in question – if I could ask your Honours to turn – in the bundle, it starts at page 175, it is the Vehicle Standard (Australian Design Rule 81/02 – Fuel Consumption Labelling for Light Vehicles) 2008. As its printed title page conveys, it is made under subsection 7(1) of the Act to which I have just taken you. In it, could I take you to, first of all, its scope in clause 1.1. It:
prescribes the requirements for the measure of vehicle fuel consumption, carbon dioxide emissions, energy consumption and range –

et cetera, and, in particular:
the design and application of fuel consumption labels and energy consumption labels to vehicles.

Could I then, on the next page, under the heading of “Requirements”, draw to your attention clause 4.1:
Every vehicle shall have applied to its windscreen a fuel consumption label or energy consumption label meeting the specifications of the appropriate label illustrated in Appendix A.

Could I take your Honours to Appendix A, which you will find on page 184, relevantly.
GAGELER J:   You might have to pause a moment to allow us to find it in the hard copy.
MR WALKER:   Sorry, your Honour.
GORDON J:   It is in volume 2 – a separate little volume.
MR WALKER:   I am sorry, it is on a number of pages.
GAGELER J:   We have it, thank you.
GORDON J:   We have it separately as volume 2.
GAGELER J:   Thank you.
MR WALKER:   I am sorry. I do not need to dwell on the details. The first figure 1 will do. It serves the valuable purpose of illustrating the minuteness of the prescription, no doubt learning the lesson of centuries as it gave rise to the colloquial expression “fine‑print”. You will see a very detailed prescription of font and size, et cetera. This is a template for – your Honours can rest assured no fuel consumption is announced as being three X, those are variables to be filled in after the test has been performed. Just as the rubric “make model variant transmission fuel type” are above. But the form constantly has the disclaimer, as it may be called, beneath the two wide boxes:
Vehicle tested in accordance with ADR 81/02. Actual fuel consumption and CO₂ emissions depend on factors such as traffic conditions, vehicle condition and how you drive.

And then green:
More information at –

a website. As I say, they are standard requirements. Could I draw to attention the entry for a combined test, which stands alongside the urban and extra urban test. It seems, so far as we can untangle these provisions, to be an arithmetic average.
JAGOT J: Where is that, sorry?
MR WALKER:   You will see that on all of these forms of label. Does your Honour ‑ ‑ ‑
JAGOT J: Combined test.
MR WALKER:   So, you have “Combined Test”, “Urban” test, and “Extra Urban” test.
GORDON J:   Is that both for fuel consumption and for CO₂ emissions, or just fuel consumption?
MR WALKER: No, no. I am only drawing it to attention for fuel consumption, your Honour.
GORDON J: Thank you.
MR WALKER: That is, it appears – this is just a straw in the wind, really – it appears that that is an averaging. Now, a moment’s thought will tell your Honours that average would only apply if you drove as much urban as extra urban and vice versa, and anybody who knows that that is how they are going to use their vehicle is, one would have thought, a super‑person with respect to capacity to prophecy.
Now, coming back then to the clause 4 requirements, having digressed to show the minute regulation and the nature of the content of the label required by 4.1, you see under 4.2 the prescription then continues in a way, we submit, that would suggest an eye to the way in which persons in trade, including prospective customers, may come across this information. It is required to be placed in the bottom corner of the front windscreen on the inside of the windscreen. The inside, presumably, to protect it from weather; the bottom corner, presumably, so as not to impede vision; and the front windscreen so as to be relatively prominent by anybody looking at the vehicle.

We then come to 4.5, which, subject to requirements that I do not think we will need to concern you with, requires the manufacturer to report – the manufacturer to report:

for vehicles specified in clause 4.3 –

That includes the internal combustion engine in question in this case:
the three fuel consumption results and three carbon dioxide emissions results for the vehicle –

Can I note that in particular, because we anticipate from the served outline from our friends that there is another variant of an argument being sought to be advanced in this Court – maybe I have misunderstood it – but “for the vehicle” does not mean that the vehicle upon which the label is displayed in the showroom of the dealer is the vehicle that has been tested, as opposed to a vehicle of which I will call a representative sample has been previously tested. I will come back to that point. So “for the vehicle” means of course with respect to the vehicle as specified by the rest of the provisions to which I am going to come. Those provisions are invoked by the closing phrase of 4.5.1, namely:
as determined in accordance with Annex 6 or Annex 8 of Appendix B or Appendix C –

Now, in relation to those provisions, and using – because we think this is the one relevant, though the differences do not matter – Appendix C, your Honours will find that in the hard copy bundle at 217 – starting at 217 – and it is, in fact, the United Nations Regulation No. 101, Revision 2, et cetera, et cetera.
On its second page of the contents, you see a reference to its Annex 6, which is the method of measuring the emissions of carbon dioxide and fuel consumption of vehicles powered by an internal combustion engine. These are regulations which turn on the administrative concept of an approval, which is gained by reference to – among other things – test results. You will see an application for approval in the hardcopy. It is 222 in the bundle, page 7 of the print of the ADR. So, 3.1:

The application for approval of a vehicle type –

I will draw to attention that expression:
with regard for the measurement of the emission of carbon dioxide and fuel consumption . . . shall be submitted –

et cetera. At 3.3:
A vehicle, representative of the vehicle type to be approved, shall be submitted –

So, that is an item, representative of the type, shall be submitted. Then, it is to be tested in accordance with Regulation No. 83. I do not need to take you to any further detail about regulation 83, except as found in the courts below that it is a highly prescriptive and – in the best sense of the word – artificial set of specifications that are fairly described as laboratory testing. There is obvious policy behind that not quite universal, but fairly globalised approach; namely, that there should be the elimination of as many differences as possible for the purposes of imparting some information thought by some governments from time‑to‑time to be more or less useful to consumers.
On the next page in the same annex, you will see the reference in 5.2.1 with respect to the prescription of the measurement. That, obviously, is a measurement from tests conducted, as envisaged by 3.3, namely:

A vehicle, representative of the vehicle type to be approved, shall be submitted –

While on the application of the standard, could I draw to attention – and this is back on page 177 of the bundle in the Vehicle Standard 2008 – in clause 4, “Requirements”, to which I have been. The stipulations continue in clause 4.6 to describe those values that I have described to your Honours, namely, the urban, extra urban and combined values under clause 4.5.1. Those are, as to fuel consumption, the particular values which are at issue in these proceedings. Could I then take your Honours in the Motor Vehicle Standards Act again, please, to its section 13A. It is page 127 of the hard bundle. It is in subsection (1), you can ignore the opening phrase “Subject to”:
a person must not do an act that results in the modification of a standard vehicle in a way that makes it nonstandard.

As I drew to attention, that is, in the rather ponderous drafting style, a clear stipulation that anything required by a standard may not be departed from on pain of rendering the vehicle not a standard vehicle. I should have drawn to attention earlier that there is a definition of standard vehicle on page 117 of the hard bundle that is, by a lot of words, a very obvious proposition. It means:
a new vehicle that complies with the national standards –

relevantly. So, 13A introduces criminal sanction for the state of affairs which, having once rendered a vehicle standard, if changed would render it non‑standard. If I may descend from that level of abstraction and generality, no doubt convenient for the provisions of subsection 13A(1), that means in this case the label must not be removed or altered. Could I then show the belt and braces requirements concerning the standardisation through these provisions? In section 14 where, as your Honours see, subject to an exception that does not matter for our case:
a person must not supply to the market –

So here it is speaking to conduct in trade or commerce:
a new vehicle that:
(a)is nonstandard; or
(b)does not have an identification plate.

GORDON J:   That must be the car market – the market for new cars.
MR WALKER:   Yes, yes.
STEWARD J:   Does that mean that the label is put on as the car is rolling off the ship, as it were?
MR WALKER:   It is before that, I think, before import.
STEWARD J:   Before import, right. But it is on the car before it reaches the dealership?
MR WALKER:   Yes. And supply to the market, as your Honours know, may be by a number of different levels of trade – a manufacturer can supply; so-called dealers – whether they are wholesalers or retailers – are also involved in supply. But section 14, as you would expect in relation to something known as a standard, section 14 applies at whatever of level of trade we are talking about, so long as it is a supply to the market.
GAGELER J:   Well, that is a defined expression, it:
means deliver the vehicle to a person for use in transport in Australia.

MR WALKER:   Yes. Exactly.
GORDON J:   But my point is, it does extend to both manufacturers, dealers, retailers.
MR WALKER:   Yes. All of whom are involved, ultimately, in placing the vehicle in the hands of – the label has to be, of course, in place before import and section 13A requires you to do nothing that would alter that state of affairs.
GORDON J:   So, your client is in the business of selling standard vehicles.
MR WALKER:   Yes. Both my clients.
GORDON J:   Both your clients are.
MR WALKER: I think the suite of provisions is completed, then, by noting the effect of section 18, page 139 of the hard bundle, which, again subject to currently immaterial matters, prohibits the importing of a “road vehicle” that is “nonstandard”. So, this stream of commerce, from import to the hands of the person who is going to drive it is of a vehicle that is compelled, by criminal sanction, to be, as it happens, always standard.
Now, we have drawn to attention – it is really simply to indicate the unmistakable significance of this prescription concerning the state of the vehicle in the stream of commerce – to section 106 of the ACL. It had not been figured in the argument previously. We draw it to attention – we have given a copy. It is picked up because in section 41 of the Motor Vehicle Standards Act, there is a link made to the Australian Consumer Law, section 106, so as to prescribe that:

a national standard –

of the kind in question in this case:
is to be taken to be a safety standard (within the meaning of the Australian Consumer Law).

And, however, counter‑intuitive or not, fuel consumption may be in relation to safety – perhaps not so counter‑intuitive with respect to CO₂ – they are safety standards and section 106, as your Honours can see, adds another prohibition, then, on any supply of consumer goods, including a motor vehicle, contrary to such a standard.
GORDON J: I am sorry, Mr Walker. I am being slow. Could you just explain to me again how 106 works? Is it the position, as I understand it, that those standards that you have just taken us through are a safety standard?
MR WALKER: They are taken by section 41 of the Motor Vehicle Standards Act to be a safety standard within the meaning of the Australian Consumer Law, which law, by its section 106, that we have handed up, prohibits the supply of consumer goods if:
(a)a safety standard for the consumer goods of that kind is in force; and
(b)those goods do not comply with the standard.

GORDON J: So then, can we just work through the application, or the significance of that provision to the facts of this case? It was not raised below ‑ ‑ ‑
MR WALKER: No, no.
GORDON J: There was no action brought in relation to it?
MR WALKER: No, no. Of course, there is not. May I say ‑ ‑ ‑
GORDON J: No, it has some significance – can I keep going?
MR WALKER: Yes.
GORDON J: Third, how does it operate in the context of these kinds of facts? I mean, what is it doing?
MR WALKER: It does nothing to our detriment at all. We had not failed to comply with the standard.
GORDON J: That is why I am asking, what do you say the limits of it are?
MR WALKER:   The significance of it is simply that it adds, maybe by way of supererogation, yet another specific statutory requirement, again criminally sanctioned, for the keeping in place of a fuel consumption notice in the prescribed form, a minutely prescribed form according to a minutely specified test of a representative vehicle.
GORDON J:   The reason why I ask is, under 106, how is it to operate? In the sense that one has the safety standard and then you have (b), those goods do not comply with that standard. Has it ever been tested? Has it ever been used?
MR WALKER:   Not to our knowledge. We cannot point to any example where anybody has got into trouble under 106 because the fuel consumption label had been taken off, which would be a test ‑ ‑ ‑
GORDON J:   Is that the limit of it, just the application or non‑application of the certificate – of the label, or does it also extend to a good which has the label on it but does not satisfy the standard – does not satisfy what is said on the label? I put that neutrally.
MR WALKER:   Your Honour is, with respect, now raising the next step in our argument, which is the difference between compliance with a standard by compliance with the labelling requirement, which has to do with the testing that provides the content that must be put on the label, and which label must stay on the vehicle during the whole stream of commerce. That is the relevant standard which under 106 becomes a safety standard.
But whether safety standard or not under the ACL, it is a standard under MVSA and it is an offence to supply the goods if it is non‑standard, and the respect in which it would be non‑standard would be, on our understanding of the issues in this case – and they have changed from the Tribunal to this Court – has never been that there was a failure to comply with the labelling requirements, ever.

GORDON J:   Can I ask a more direct question? I am sorry I am making a meal of this, but is it the position that, reading subsection 7(b)(i) of 106, that if a good or a car was able to be shown that it did not have the fuel efficiency set out on the label, that someone would have an action under 106?
MR WALKER:   No, not at all.
GORDON J:   Thank you.
MR WALKER:   Because there is no standard that the individual vehicle at any particular time be in such a state that, had it been subjected to the stipulated laboratory testing, it would have produced the same figures as are on the label. There is no case to that effect; never has been.
GAGELER J:   It may be not 106, but provisions like 106 have been litigated in the Federal Court, some of which I think I have been involved in myself. Are we going down an unnecessary rabbit hole?
MR WALKER:   I do not want to. I wanted to draw to attention the whole of the provisions which both set a standard and describe the way in which the requirement for a standard operates, both affirmatively in terms of what needs to be done, and then prohibitively or penally to provide for what happens when it is not done. The only standard in question in this case – I stress, the only standard in question in this case is a standard about the affixing of a label in the correct form.

To jump ahead – I hope there are no rabbit holes, I think – that is before we get to a case about representations, the section 18 case, which is not a case about standards within the meaning of the MVSA. It is not an “S” of the MVSA. To jump ahead in a way that I think is common ground, there was, of course, a broader set of complaints presented originally in the Tribunal, and those complaints included a suite of variations on the proposition that the particular motor car bought by the respondent was, in relation to its fuel consumption – and to use ordinary English rather than a technical word – defective.

All of that was dismissed in the Tribunal and is not now in question. We do not think it truly can be said to be in question, notwithstanding some attempts in vain in courts below, in any of the issues that were decided in the Supreme Court, or the Court of Appeal, or are live in this Court.

GORDON J: They were complaints about contraventions of consumer guarantees.
MR WALKER: In effect, yes, and the word “warranty” lurks behind, in our submission, a deal of the argument against us, and, as a shadowy presence, perhaps informs the errors that we say the Court of Appeal made in the passages to which I am going to come shortly.
It suffices to say that the standard in question – using that word technically – is a standard concerning the affixing of a label, and for what it is worth, if the label makes a representation – and putting to one side the question of if so, who made the representation – if the label made a representation, and all statements of information do, one way the other, then that was a statement that was not wrong.

STEWARD J: Mr Walker, just to clarify 106, you are not suggesting that 106 affects the way one construes the reach of section 18? There is no need to reconcile ‑ ‑ ‑
MR WALKER: No, not at all.
STEWARD J: Okay.
MR WALKER: I draw its attention – I know it is a slightly pathetic phrase – for completeness, because we had neglected earlier to point out the ways in which compliance with standards are legislated, and it is legislated in 106 as well, as it happens. It already was legislated, that is why it may be supererogation. But it does not alter the way in which one views the application of section 18. It is clear, of course, that it adds to the provisions which require compliance with what I am going to call the fuel consumption label standard, and by requiring that, it obviously raises what I am going to call the GMAC question concerning section 18.
How is it, with an appropriate respect for Parliament, possible for it to be the unfair trade practice as identified by Sir Anthony Mason of misleading and deceptive conduct in trade or commerce to do that which Parliament has specifically required to be done – including by criminal sanction – in that particular aspect of trade and commerce.

As I say, that there had been testing in accordance with the standard, that the test results were accurately recorded in the label, is not in contest. This is not a case where the label misled as to the information it conveyed. As we have noted in our written submissions and is explained in the reasons below, anybody concerned to take the promise at the foot of the label would know two things – the label figures will not tell them what fuel consumption they are going to enjoy or suffer ‑ ‑ ‑

GLEESON J:   Anyone who is capable of reading 7‑point font.
MR WALKER:   I am sorry?
GLEESON J:   Anyone who is capable of reading 7‑point font.
MR WALKER:   Your Honour, some people need protheses but, yes. In any event, if I might say so, Parliament has stipulated that that is how attempts are to be made to give information to consumers. If I may say so, Parliament’s sanguine view of the success of Specsavers is, with respect, not something that throws any adverse light on our commission or otherwise of unfair trade practice.
JAGOT J:   But when you – I just want to make sure that I understand the submission – what you last said, not about the spectacles but the fuel consumption, the information at the bottom of the label – when you said it is not specific or particular to the vehicle, do you mean that it is not specific to a particular consumer’s use of the vehicle, or it is not specific to the vehicle itself? I am trying to understand.
MR WALKER:   That may not be a ‑ ‑ ‑
JAGOT J:   Distinction?
MR WALKER:   ‑ ‑ ‑ particularly fundamental difference. Can I explain why? The condition of the vehicle – as well as driving conditions, so called – as well as driving style – so there is a machine, there is a person, there is terrain, there is weather and there is also age, wear and tear, et cetera. All of those things are obviously going to inform actual experience compared to the laboratory‑obtained results under an artificial test.
JAGOT J:   Sure. But if you took a specific vehicle and subjected it to the precise laboratory testing, are you saying the label says anything about the fuel consumption?
MR WALKER:   No.
JAGOT J:   It does not?
MR WALKER:   It certainly does not say – and if, as in this case, 50,000 kilometres later – nearly two years later ‑ ‑ ‑
JAGOT J:   Sure.
MR WALKER:   ‑ ‑ ‑ we submit this vehicle to the same laboratory testing as the representative sample was, that it will turn up better, worse, the same, plus or minus whatever margin.
GORDON J: What about at time of purchase?
MR WALKER:   That is one of the, I will call it, replicability representations.
GORDON J: No, I am not talking about replicability, I am talking about what the label says in response to Justice Jagot’s questions.
MR WALKER:   It does not say anything about that at all, because there is simply an assumption of a kind the Court of Appeal identifies, and which is obviously common sense, concerning the fungible nature of mass‑produced goods.
GORDON J: I do not know – that may not answer the question in this sense. We all accept they are mass‑produced goods, and we all accept that this is a figure that is done under testing in laboratory, but what the label does tell you is – in effect, that 7‑point font does say to you, listen, in relation to this car ‑ ‑ ‑
MR WALKER:   Your car.
GORDON J: Your car. This label tells you some things, but it is subject to conditions, and those conditions are the things you are identifying. That is a very different proposition than saying nothing about this particular car, or your car, and then ‑ ‑ ‑
MR WALKER:   I have overstated. When I say “nothing”, that is not right. What it says is this car is a car of the model or type on the label.
GLEESON J: It is a prediction about the future fuel consumption.
MR WALKER:   It is not a prediction of the particular vehicle. It is saying, this model or type, when tested in the laboratory, came up with this figure. No one has ever essayed an attempt to say that the laboratory is indeed a reliable simulation of whatever variable conditions around the globe those vehicles may be used in. That is the first thing.
GLEESON J: But surely a reasonable person reading the very large font, at the top, “Fuel Consumption”, would think that that is a prediction about what would happen if the car was driven. It is not speaking about the state of the car at the time of purchase, it is making a prediction about the future.
MR WALKER:   If it were making a prediction, your Honour, it is only on the basis that the state of affairs, when tested, would continue. If that is a prediction, then yes is the answer to your question. It is certainly not saying, we warrant that, two years from now and after 50,000 kilometres, you will get either those figures or figures within some stipulated acceptable order of accuracy, margin of error.
GORDON J: It does say, does it not, that if I buy this vehicle – particular vehicle – and I take it and subject it to the testing that was undertaken in accordance with the standard, at the time of purchase – at or around – I am going to be in the ballpark.
MR WALKER:   Yes. And that comes about from the fact that it is a mass‑produced item, not from the words on the label.
GORDON J: And so, the next proposition is that if I have a car, and I have this label, and it is telling me something about this particular car in the way in which we have discussed it, and I go and show its testing and it is wrong, then why is that not itself misleading and deceptive?
MR WALKER:   When you say the testing is wrong ‑ ‑ ‑
GORDON J: Sorry, the results that are then generated at or about the time of purchase go to show that what on the label is not right, for this car, that that is telling me something that is giving rise to an action of representation in the way we have described, and therefore within the four limbs of the application of section 18.
MR WALKER:   The label does not say anything other than the car in front of you in the showroom is of the type or model for which this fuel consumption notice is stipulated. It does not say anything about the detail of what I am going to call quality control or engineering by which the expected variability between apparently identical items of mass‑produced objects, such as motor cars, will or will not be subject to as a matter of experience.
The standard does not essay anything by way of information concerning that, and to put it another way, there could be no thought that it would be reasonable for a consumer to believe that there is no variability between, say, one million items of an identical model of a motor car, or whatever range of variability is accepted for quality control purposes or otherwise. So, we know what the label conveys is the vehicle before you with this compulsory label is a vehicle of the model that was tested by the type of testing required. That is the extent that the combination of the label and the website to which you are handily directed will convey.

GLEESON J:   None of this matters if you are correct on GMAC, is that fair?
MR WALKER:   We do collapse the matter in that way, yes.
GLEESON J:   But your observation about this as conveying information about a test, is that principally based on that seven‑point language at the bottom?
MR WALKER:   It is not – the fact that it is based on a test is, A, a matter of fact and, B, not a subject matter that the label says one way or the other.
GLEESON J:   Well, I think I was understanding you to be making a submission about what was conveyed.
MR WALKER:   When you incorporate what is conveyed on the website it is beyond any doubt a question of a test.
GLEESON J:   But, surely, there would be a group within the reasonable consumer who would not go and look at the website.
MR WALKER:   But this is a group that does not include the respondent. The respondent is not someone who said, I thought this car had been tested producing these results, and if there were such a person, then there would be a lively dispute as to whether that was reasonable; that is, did you really think that every single vehicle has been through a test?
GORDON J:   I think that is not put. It has been through every ‑ ‑ ‑
MR WALKER:   Well, it might be put ‑ ‑ ‑
GORDON J:   Well, if it is not ‑ ‑ ‑
MR WALKER: ‑ ‑ ‑ now.
GORDON J:   Well, it may be, but that is not what we are talking about. We are not talking about testing every vehicle. We are talking about what does this label tell a reasonable consumer, and does the bit at the bottom, in effect, work against you, because what it is telling you is, listen, this is what we expect ‑ ‑ ‑
MR WALKER:   Yes.
GORDON J: ‑ ‑ ‑ this car will do, but it is subject to three qualifications. The question which arises is: is that fair ‑ ‑ ‑
MR WALKER:   Well, that does not arise in this case. There was no issue in this case about an inability to read or appreciate the import of those words, which are stating the rather obvious.
GORDON J:   No, no, in terms of what is represented. Does it say something about this particular vehicle, or does it not?
MR WALKER:   When we say whether something is represented, we are talking about the conduct of offering for sale a motor vehicle which has to have that label in order to be legally offered for sale.
GORDON J:   That is true, but your clients have to choose to put the vehicle on the floor.
MR WALKER:   No, I do not say that. I will come to that. It is paragraph 115 in the Court of Appeal. I am coming to that. But with respect to the representation – and there is some instability in the way in which the respondent has put the case at the levels below, and maybe still here. Using the jargon of the case, there is a species of representation which is called replicability, but it has two kinds in itself. The first is one which, in our submission, really was what Justice Ginnane was talking about, although the Court of Appeal reads differently what his Honour did.
The first is that if the label conveys that if at some time in the future, there is so‑called retesting – a misnomer, but nonetheless – or further testing of that very car that you bought with the label on it, at a temporal remove that is inexact, informed by the notion of reasonableness, perhaps two years, perhaps the extent of the warranty. All of that is, obviously, hopelessly unsubstantiated gloss on what the label and any reasonable, correct understanding of consumer would produce.

In any event, that was, as a matter of history, one of the arguments that we were faced with in the courts below. This conduct, by selling with this label, represented that this particular motor car – in this case, more than 50,000 kilometres later, more than two years later – would produce figures then, more inexact as came in, substantially similar, et cetera. I will come back to that aspect of things, but that was one form of what I will call replicability. In effect, it was making – as Justice Gleeson was noting – a kind of prediction. It certainly is not to be found among any of the actual warranties imposed either by contract or law – by statute law. This is not a case about sale by description. All those other ways of holding people to what might appear to be prediction are unavailable, simply representational misleading and deceptive conduct.

The second form of so‑called replicability representation was, if you like, a thought experiment notion, because the idea of it operating in practice is absurd. Namely, that when you see the car on the floor of the showroom, that if tested there and then in accordance with the laboratory specification, that example on the showroom floor would produce the same figures as the representative sample required by the testing protocol which had produced the figures that the law then required to be on the label.

There is, we accept, some common sense in the notion of mass‑produced goods which are categorised by reference to models and types – I think three, on this label – that it makes sense – although there was no evidence about this. It makes sense, however, that a reader of the label would say there is something – that is why I am saying, of course there is something said – there is something about the object on the showroom floor being said by this label, speaking about the type or model. Of course there is something said.

It does not go beyond saying that you may expect an experience with the object that you may be about to buy which will be as tolerably similar to the performance of the laboratory‑tested item, as would be sensible with respect to, A, mass‑produced products with modern industrial quality control and, B, of course, the different conditions that will obtain not only day‑to‑day but also between individuals and time. So, whatever that is ‑ ‑ ‑

GORDON J: So, let us take ‑ ‑ ‑
MR WALKER: And that, of course, is a very large range.
GORDON J: So, to take that representation – that is the second one you have just set out – and, in effect, take it out of the showroom – in a sense, take it to the car that I am then given ‑ ‑ ‑
MR WALKER: That is what I am talking about. The car you have.
GORDON J: I am sorry. I thought you were talking about – you said on the showroom floor.
MR WALKER: By the showroom, I mean that is the actual car you are about to buy.
GORDON J: I see. Thank you.
MR WALKER: I am so sorry.
GORDON J: That is all right.
MR WALKER: The one whose tires you have kicked. So, if you can arrange your finance – once upon a time with GMAC, no doubt, you can drive that one away. So, when I say showroom, I mean you are about to buy the actual thing. What it does not say, however, is that the laboratory testing predicts road experience. If you read the fine print, so‑called, or went to the website, that is extremely obvious. No one is saying anything by way of warranty or representation about the resemblance that the laboratory conditions have to the multiplicity of different conditions by human conduct, wear and tear, weather, road conditions, et cetera, et cetera.
STEWARD J: Well, in that respect, the label may say something about the actual vehicle, because when it says “actual fuel consumption”, it must be referring to all other model cars of this type or this model, including the one you are looking at right now.
MR WALKER: That is plainly correct. That comes, if I may say ‑ ‑ ‑
STEWARD J: So, we have the exemplar of the testing ‑ ‑ ‑
MR WALKER: Yes.
STEWARD J: ‑ ‑ ‑ ‑ and then the representation, then, no doubt, your vehicle is in that fine print. I can call it that.
MR WALKER: If I may say so, the fine print does not contain anything arcane. We are talking about ordinary, reasonable consumers buying a motor car. On any view of it, the Court can confidently say, there is some understanding of the effect of load on fuel consumption – and load having its own set of factors, including, for example, speed, acceleration, et cetera, et cetera.
GLEESON J: Mr Walker, these kinds of labels are not unusual. These are the kinds of labels that we see ‑ ‑ ‑
MR WALKER: Refrigerators ‑ ‑ ‑
GLEESON J: ‑ ‑ ‑ on fridges, washing machines, dryers. Is it not overthinking it to question the method by which these kinds of numbers, number of stars on a washing machine, might be derived from? I mean, really what it is, is a prediction that a particular item like a car or a washing machine, when used, will consume a certain amount of energy.
MR WALKER:   No, no. It could not possibly be that because of individual usage – whether for a refrigerator, a stove, washing machine ‑ ‑ ‑
GLEESON J:   Despite the precision of it, it is not – and this comes back to the purpose of these. An important purpose is that they are used as comparators when a consumer is deciding whether or not to buy the Volvo or the Holden.
MR WALKER:   Yes, that is right.
GLEESON J:   In that sense, the particular numbers might seem to have salience. But, broadly, what has been conveyed is that when the vehicle is being used, it will consume a certain amount of fuel.
MR WALKER:   No, no. Your Honour, that is really what it does not say unless you add to it a phrase which destroys that message, because you have to add to it the phrase – and this is even without the subscript – subject to how you use it and what condition it is in; subject to how the road is; subject to how many traffic lights you have to stop at.
GLEESON J:   Because that would make it meaningless.
MR WALKER:   Your Honour, what I am trying to say is, this for comparative purposes – the results of an artificial test. It even has a combined figure – look at the one in question, in this case, page 137 of the book, the annexure to the judgment, which is plainly just an average. It is absurd to suppose that the test results, “Urban 9” – the test results, “Extra Urban 6.8”, means that however you use your car, lots of urban or lots of extra urban, you are going to have “7.6”. These are test results – combined test – and the point of comparison is of those figures which, if you like, are, in a precise use of the word, “conventional”. There is a convention made by the standards which we know derive from a degree of international co‑operation and which, in any event, regulate importing.

That convention happens to be operated, as you might expect if you want a globalised comparability achieved, by reference to something which is highly specified – the more highly specified it is, of course, the less it could possibly be predictive of the use of any particular example of that vehicle type.

JAGOT J:   Could I just clarify – I know you have said this before, I am sorry – from what you said, do you then accept that a specific vehicle on the showroom floor, if you test it as per the standard, that the label is conveying that that particular vehicle, before it has been used by anybody, will basically meet the – that there is a ‑ ‑ ‑
MR WALKER:   Replicability.
JAGOT J:   ‑ ‑ ‑ replicability – representation in the label? I know that is not this case because it is two years later, it is 50,000 kilometres, but I am just trying to understand – because I thought you said it said nothing about the particular vehicle, it said only ‑ ‑ ‑
MR WALKER:   That it is a member of the category ‑ ‑ ‑
JAGOT J:   ‑ ‑ ‑ that it is a member of a class where a representative – that is one representation: a member of a class where, when a representative vehicle of that class was tested as per standard, you got these results. I thought you were saying – it says, because of engineering quality control, it may say nothing about that you might buy a lemon. You could take off the showroom floor, test it and it does not meet those things because ‑ ‑ ‑
MR WALKER:   It does not show the label was misleading or deceptive.
JAGOT J:   It does not.
MR WALKER:   It does not show the label was misleading or deceptive.
JAGOT J:   Right. It may be another.
MR WALKER:   Exactly.
JAGOT J:   Yes. But the label ‑ ‑ ‑
MR WALKER:   The law does provide a remedy for lemons.
JAGOT J:   No, no, that is right.
MR WALKER:   But this was not this case.
JAGOT J:   I thought you said to the opposite of that.
GORDON J:   I think you did.
JAGOT J:   I thought I had understood, and then I thought you were accepting ‑ ‑ ‑
MR WALKER:   I am about to say what I think I said ‑ ‑ ‑
GORDON J:   Well, I have written it down ‑ ‑ ‑
MR WALKER:   ‑ ‑ ‑ and make it clear what I mean.
JAGOT J: Okay.
GORDON J:   ‑ ‑ ‑ you said, I can expect an experience with this object that you have bought as tolerably similar to the performance of the laboratory‑tested item.
MR WALKER:   Because it is a member of a mass-produced item, that is, the very notion when you talk about Mitsubishi Triton GLX, GLS, Exceed – I think those are three variants – the label says that these are items of commerce, including the one in front of you that you are thinking about buying, about which this is a statement – as it happens, required by law – concerning fuel consumption. That is the first thing. The label does that. If you combine that with something that the label does not convey, but which common sense brings to bear, namely that the vehicle, being one of those described on the label, has some relation to the figures on the label, then we have no problem with that.
Of course, it has a relation. But the relation it has is simply that it is a member of the class in respect of which there has been previously tested an example, under laboratory conditions that nobody says predicts actual usage, producing these figures, providing that, because of the highly stipulated and standard form of testing, providing the point of comparability between the Holden, the Fiat, the whatever. And it does not mean I predict that you will get this mythical beast, combined test 7.6 in actuality, but simply that you can compare that 7.6 to another car’s 9.5 and say there is, or is not, according to your predilections, an appreciable difference in fuel consumption.

Now, of course, the fuel consumption is, and I think this is what I have been asked about – I hope it is – of course, that is sensibly offered as something which will inform a commercial decision because of what might be called a kind of expectation. But that is as close as it ever gets to a prediction. It is certainly not a warranty. And, of course, ordinarily figures of this technical specification would be a warranty. But if somebody says, this engine has a particular gauge, it can run at these particular revs per minute, then those figures are figures which will be part of the description to which you will be held by imposed statutory obligation.

This case may have once upon a time, before the Tribunal, had elements of that – they all failed. The particular car was not found to be a lemon, it was not defective. None of those issues are before this Court. We do not know what it would have produced had it been tested, in a most unlikely hypothesis, according to the laboratory protocol, on the showroom floor.

GORDON J:   Or at or about time of purchase. One could drive it off the floor, drive it for a day, and test it.
MR WALKER:   Depends who the driver is, and where they have driven it.
GORDON J:   For one day.
MR WALKER:   Well, it depends on what happens, your Honour. But I am not proposing any protocol for testing, for similitude the actual vehicle purchased so as to compare it with the accurate – the accepted to be accurate outcome of the testing in this case. Our label was lawful in what it said according to the highly detailed stipulations for what the label must say.
GAGELER J:   We seem to have diverted you, Mr Walker, from ground 1 of the appeal somewhere to ground 2.
MR WALKER:   I think that is right.
GAGELER J:   Was there more you wished to say about that?
MR WALKER:   Your Honour, obviously I wish to answer all the questions put to me.
GAGELER J:   Of course.
MR WALKER:   I think I need to perhaps – I will come back further to what I want to say about propositions 2 and 3, because what your Honours have been asking me in particular concerns proposition 6 and, in particular, propositions 10 and following with respect to ground 2, and I am perfectly happy to complete them, if I may.
As proposition 6 points out, and for a number of purposes, this is a case which has to be decided on the basis that the label was in every respect lawful, that there was no inaccuracy or in itself anything misleading or deceptive about the information conveyed about the testing. Now, those last words are important – “about the testing”. The testing was properly done. If it matters – and it should not – but if matters, the “properly done” extends to a representative example, having been the object of the test; all the matters of the protocol complied with; the figures accurately recorded in the manner stipulated – and, as your Honours know, it is not just a matter of simply reading a gauge – and then properly printed and prepared for the label which is, as I say, laboriously stipulated as to what it has to say, how it has to say, how it has to present, including print, small or otherwise.

When one looks at all of that conduct so far as that label is concerned, and bearing in mind the practical, if you like, consumerist consideration as a matter of policy that this has to do with sale, the concern of Parliament is to regulate the information made available by such labels and, as willy‑nilly, the manufacturer, if you are going to sell you must display a label that complies.

Bearing in mind that setting, we accept that it is going to say something about the vehicle for you on the showroom. What it does not say, of course, is that the way you drive and the experience you have, either for the next day, the next two years or the next 20 years, will in any way have been predicted by our laboratory test. It does not say that at all, ever, and any commonsense reflection on the notion of reducing the experience both between individuals and over time for the same individual to a single figure for fuel consumption should be rejected as soon as raised. No one could possibly, sensibly or reasonably have proceeded on such a basis.

GAGELER J:   I am sorry, Mr Walker, is this directed to your proposition 6?
MR WALKER:   That is proposition 6 and then proposition 11.
GAGELER J:   For proposition 6, within your argument on ground 1, it really would not matter in principle if the label did contain information that was misleading.
MR WALKER:   As I said to Justice Gleeson, that is right.
GAGELER J: Yes.
MR WALKER:   No, that is right. If it is required to be put in place it does not matter whether by reasoning concerning the response of some ordinary reasonable consumers, they would be led into error.
GORDON J: And it would not matter if ‑ ‑ ‑
MR WALKER:   That is why ground 1 – yes.
GORDON J: And even if it would not matter on that proposition 6 with ground 1, if the label was consistent with the testing, but the testing been done two years ago, but the labels are fixed knowing that the results have subsequently changed.
MR WALKER:   When you say the results have subsequently ‑ ‑ ‑
GORDON J: That they knew that, for reasons of manufacture or otherwise, that those results were no longer applicable. They were wrong. For this vehicle ‑ ‑ ‑
MR WALKER:   Applicable and wrong do not have any meaning with respect to a figure historically produced by a particular lab test.
GORDON J: That is what I meant. The lapse of history, they were actually false. They no longer reflected the car.
MR WALKER:   They would never be false as to the tests, they may ‑ ‑ ‑
GORDON J: Unreliable in relation to this car.
MR WALKER:   So long as one does not make the assumption that that figure ever ‑ ‑ ‑
GORDON J: No, no, I ‑ ‑ ‑
MR WALKER: ‑ ‑ ‑ by its numerical content said anything about other cars. It just says other cars are of a type of which a sample produced that figure.
GORDON J: And what would happen ‑ ‑ ‑
MR WALKER:   That is all it says.
GORDON J: All right.
MR WALKER:   That is obviously useful, because you can put that together with the knowledge about something to do with the fungible nature of mass‑produced objects to say, well, that provides me a means to compare with competing products, not a means to compare with other members of the same category. The figure is not being used to compare with other Mitsubishis of that model.
If it is useful at all, it is a point of comparison to place it in what might be called a hierarchy of fuel consumption. By reference to a test which produces a single figure, a point estimate, as statisticians would call it, without any order of accuracy, no margins of error, and no possible capacity to convey messages about sampling, et cetera. We happen to know that it comes from one item having been tested according to processes that are outside the control of the manufacturer, so that the object of the exercise is to say, of the thing which is within the control of the manufacturer, namely, the product it has produced, what, when tested by government requirement, is its so‑called fuel consumption figure?

Its “so‑called” fuel consumption figure, because neither the test nor the stipulation requires that to be a warranty of any kind concerning other members of that class in actual road performance. And for what it is worth, the disclaimer on the label itself makes that crystal clear, as does the contents of the website, that whether this is going to be your experience, whether you are going to do better or worse, will depend upon things that are not conveyed by the label. And that is why, for example, ranges do not appear in such labels.

One can raise one’s eyebrows at the legislative policy that produces compulsory labels in that form, and it may be that many people do not pay much regard to it in terms of asking themselves, how much do I have to budget for fuel – assuming, of course, you can make predictions about fuel prices.

But, with respect, the comparison is an artificial and conventional one which may have some commercial use. You have before you a Holden and a Ford, they have these different figures, and for what it is worth you can say that one therefore appears to be thirstier than the other, and that, if it is by a sufficient margin to satisfy you, may make the difference in your purchasing decision; that is where it comes down to a matter of consumer information.

It is not consumer protection, however, in conveying a promise by Holden that they will perform that much better than Ford. For example, as you enjoy the experience of your motor car over the next one, two, five, 10, 15 years and whatever conditions you drive it in, that is absurd and no one has argued this case on that basis.

So, the second form of a replicability representation is one which may or may not be at the heart of the reasoning that we have to criticise, but it is one which, in our submission, is not conveyed by the label in any way that has a footing factually in this case so as to produce an outcome against us. The label did not say anything about the individual car being anything other than a member of a class, a sample of which had produced that test result, that is what it said. You, the reader, had to bring something else apart from what the label conveys to translate that figure into an experience for you of your vehicle.

Now, the first problem is, it not being a lemon, the actual figure – let us take the obviously artificial combined test and arithmetic average, 7.6, the first thing is that the numerical value of that derived from a test is not something which anyone could reasonably expect to be achieved with any exactness by anyone upon driving their new purchase out of the showroom. For a start, it is a combination, which obviously makes assumptions about the distribution between urban and extra urban usage. That is really the end of it as a figure of any predictive force.

The next thing is, it does not tell you anything at all about the conditions in which, say, your urban driving will take place – is it stop/start or is it freeway? It certainly does not say anything about the extra urban, is it gravelled, or not? For those reasons, in our submission, as a matter of ordinary common sense, all you have got about the particular figure is this is a test result that I can and did compare with the one for Ford, but it does not and could not convey anything numerically about my experience with the vehicle if I buy it.

GLEESON J:   Well, surely, someone in Mr Begovic’s position might say, I am a tradie, the amount that I spend on fuel each week is important to me, I have worked out that I travel, say, a thousand kilometres a week, I fill up my car once a week and I can create some very simple formula which enables me to use those figures to say I am going to expect that I am going to be spending about $200 a week on fuel.
MR WALKER:   No. No, your Honour. Your Honour, that homey example falters at a number of points. The first is no one in that position could possibly hold Mitsubishi to a household budget figure, which depends upon something totally beyond Mitsubishi’s control, namely, the price of fuel.
GLEESON J: I am not talking about holding Mitsubishi to something, but I am really trying to explore how a consumer might use those figures, and I am suggesting they might use them in relation to a particular vehicle rather than solely as a comparator.
MR WALKER:   Your Honour, I am not sure there really is a difference. As to the particular vehicle, it is one which – on the imagining of this – may or may not be purchased depending on comparisons the prospective purchaser makes. It is not only fuel consumption which will be compared, no doubt. But as to fuel consumption, it will be a comparison that will be permitted – maybe problematically – but nonetheless, it is what Parliament requires.
GLEESON J: It might be between my old car and my new car.
MR WALKER:   I was about to say, that is the most obvious one in which it becomes really problematic, because your old car would need to be a car that had also been subject to the same regime – in this case, I think it had been. But that will not always be the case.
GLEESON J: They would not have to be, because you have a figure that is litres per 100 kilometres, so you ‑ ‑ ‑
MR WALKER:   But they are not actual litres per 100 kilometres on the road, that is the point.
GLEESON J: That depends on what the consumer reads out of this label, and how carefully they are reading it. I guess what I am putting to you is the possibility that someone might not read this as involving a test that cannot then produce a result used meaningfully to compare with my old vehicle. This might all be a problem about the labelling scheme ‑ ‑ ‑
MR WALKER:   No, quite, exactly. That is what your Honour expects.
GAGELER J: We might come back to this after the morning adjournment, Mr Walker.
MR WALKER: I am so sorry, your Honour, yes.
GAGELER J: The Court will adjourn for 15 minutes.
AT 11.17 AM SHORT ADJOURNMENT
UPON RESUMING AT 11.30 AM:
MR WALKER: Your Honours, I am sorry I have obviously departed from the order of the propositions, but may I continue just to complete some of them. They do obviously relate to the way in which I have tried to answer your Honours’ various questions. In proposition 12, we seek to advance an argument that accepts that there may be the limited utility that can be identified by single values numerically expressed with the air of precision of decimal points from a standardised test which is artificial, and which is professed not to predict actual experience.
We accept that one might then ask, then why did Parliament require this to be done? That, however, is not a question which can give rise to holdings against us, least of all those which would turn these imposed words and figures to a warranty assumed by us as a result of the commercial conduct of selling. And, as I say, that would particularly anomalous in a case where anything similar to that was both tried and failed and not revived in this Court. That is the first point.

If one then restricts oneself to a section 18 analysis, the same answer in favour of our clients should follow from this fact that be it accepted that the label has the limited utility – that is, no one could think that actual figure would be what they would get for their vehicle, let alone regardless of changes of circumstances and variability of use, and also, that nobody could seriously think that that was a figure which would be true ever, let alone for a particular time, bearing in mind that it is a test result – it may be that the comparability of which the courts spoke below might have been more useful if it was a comparability expressed as your Honours would be familiar with by reference to rangers which have some basis in testing design to simulate actual conditions, including their variability. But that is not what Parliament and the ministers chose.

Instead, what was chosen was something which will permit the kind of comparison to which I have earlier spoken. That is, you compare the conventional or artificial figure of one kind of car with that provided under the same protocol for another kind of car. You do not treat either of them as a prediction that that numerical experience will be replicated, ever, in a motor vehicle actually being driven on the roads by a human being, not a robot. But you can make a comparison of a kind that might be useful for your consumer decision.

If there is defect, or unreasonableness, or impracticability, or plain silliness in that regime, none of that should be sheeted home to us legally. Either because it is not our conduct – and I am coming to paragraph 115 – but that is not our conduct, or, alternatively, obviously enough, we do not make any representations concerning that kind of replicability, either by affixing the label or by selling the vehicle. It has to be said that this respondent gave no evidence of the marketing experience including anything which could be attributed to one or other or both of our clients which would fill that gap. The conduct was simply selling the car with that compulsory label affixed.

Of course, one of the problems with any such notion of a replicability representation includes, how do you falsify it? By what margin of difference do you show a departure which would render the statement misleading and deceptive? When a departure to the extent of – and this is fantastic, of course – 7.7 rather than 7.6 for this odd notion of a combined test, would that mean misleading or deceptive? Surely not, is the only possible response, but it indicates that there are impossible to answer question, imponderable legally as well as factually, as to how the Court would regard a different numerical figure for a motor car, let alone one two years and 50,000 kilometres down the road, as indicating anything about the quality of any representation conveyed by that label, whether it was a representation made by, in effect, the regulators – which is, in truth, the case – or whether it is a representation made by the regulated trader, which is the case against us.

In our submission, it is for those reasons – given the absence of any finding or evidence concerning how this particular motor car would have thrown up results, had it been subjected to the standardised test for the appreciable use of it after sale, because there is no such material in this case – there is no case to answer concerning that other form of replicability representation even if it had been made.

Your Honours, you recall that in GMAC the – if you like – rough edges of the summary notices of rights and the extent of rights were regarded by the Court as not rendering GMAC liable for two quite separate reasons. The one that we have referred to in our proposition 1, of course, is the ultimate one upon which we rely in this case, which is one that does not require an understanding of the nuances of the iteratively developed variations of representation in this case, simply that whatever is conveyed by the compelled conduct is not capable of being an unfair trade practice in the nature of misleading and deceptive conduct in trade or commerce because it was compelled. That is what I might call the main GMAC proposition.

But there is another matter that falls out from GMAC; namely, that salary statements, in that case, of rights were not to be taken to be capable of being misleading and deceptive because full and complete black‑letter accurate description would be different, which, of course, is in the nature of summaries. There is, by analogy, something like that in this case as well; namely, the point result – the decimalised figures produced by the test, carried out previous, maybe even to the existence of the item that the consumer is looking at – that is, before that particular example was manufactured. It was not saying anything about a testing of that particular car. It was saying something about a testing of a representative sample of the model of which the car in the showroom was an example.

That is why, with respect, we draw to your Honours’ attention the way in which the Court of Appeal, at its paragraphs 97 and following, the book, 133, considered those questions. At 97, there was recorded one of these unsuccessful attempts by the respondent to expand or change the nature of the issues. You will notice halfway in 97 a record of an attempt to raise a question:

whether the vehicle that was tested was truly representative –

That is one of the examples of the kind of case or issue which cannot now be raised because they were not properly before the Court. I will not go through a catalogue of them. We have noted them in our written submissions and the Court of Appeal has, with great respect, very thoroughly canvassed the course of events before the trial judge and them in that regard.
What matters, however, is that that was just one of the clinching circumstances for the finding – which is common ground – that the label was completely lawful, so far as the MVSA is concerned. Making acute, the question is, can that be true and it also be – that is, its compulsory deployment – can that also be nonetheless unlawful under section 18 of the ACL? That is what we might call the primary GMAC proposition and upon which we take our stand in this Court.

Paragraph 98 records how there was just no factual basis for a complaint about the conduct of the test, including the representative nature of the vehicle. Paragraph 99 records their Honours’ acceptance that the label refers to the conduct of a standardised test. Then, in paragraph 100, their Honours refer to what I was trying to convey earlier, namely, there is a fact, external to the label, but with which the whole market is pregnant; namely:

that motor vehicles are mass‑produced and distinguished by make and model (among other things) –

Consumers, of course, reasonably, bring that understanding to their appreciation of a label which, after all, declares its applicability – relevance, if you like – to the particular item in front of them because it has that description. I use the word “description” to note again, in contrast, this is not a case where any of the obligations – statutory – enforce, stemming from sale by description were found to have been breached. There is no description, in the sense of sale by description, which is available to be argued in this Court about the car bought by the respondent having been breached – nothing of that kind.
But there is something that is said by the label about the particular motor vehicle to which it is attached. Obviously enough, first of all, does not relate that particular car having been tested, as their Honours make it clear at the foot of paragraph 100 with their reference to the “extraordinarily extensive and unnecessary regime”. So, we can forget the idea that this represents that this is a car that has been found on testing to produce this conventional figure. The Court of Appeal then, in paragraph 102, commenced a reading – perhaps a rejigging – of the approach taken at first instance in the Supreme Court, which included reference to Justice Ginnane’s finding that – this is the last two sentences of 102:

a consumer could only make a reasonably accurate comparison . . . if the results could be replicated under the testing regime set out in the Standard.

That, in our submission, confuses notions of testing results. A test result could only be fairly compared if it was compared against something which had been subject to exactly the same standardised and artificial protocol. How that would add, with respect, to such consumer advantage as may be obtained from reading these labels is not explained by Justice Ginnane. It certainly is not possible to argue that the label conveys anything about what discrepancies may be experienced by reference to the use in actual road conditions, it being remembered that the disclaimer in the notice itself – the warning, if you like – makes it clear that the factors there referred to are simply illustrative – “such as”, it says.
GORDON J:   What do we make about 108 in that context?
MR WALKER:   Can I come to that in just, I think, less than a minute?
GORDON J:   Yes.
MR WALKER:   The passage starting in 102, concluding in 105, was dealing with a proposed ground 3 in the Court of Appeal which I do not need to concern your Honours, but it concludes, of course, with noting how the matter had been factually presented in the courts below, namely – I am sorry, I need to draw to attention 103 and 104 where their Honours rejig, as it were, the way in which Justice Ginnane referred to it. As your Honours know, Justice Ginnane found that there was a representation that:
the fuel consumption figures . . . would be capable of being replicated under the Standard’s testing for a reasonable period, at least two years and ‘perhaps’ for the life of the vehicle warranty.

A description which, in our submission, is redolent of the great unlikelihood of that being a representation from the conduct of fixing the mandatory label. In 104, their Honours, in our submission, probably wrongly – but that is not an issue directly before this Court – gloss or reinterpret the way in which Justice Ginnane had thus concluded and, in particular, it is wrong for their Honours not to have considered the significance of the reliance by the respondent on Ms Winkelmann’s evidence.
Ms Winkelmann’s evidence was the testing two years and 50,000 kilometres later, and that was the significance of Justice Ginnane finding, in effect, well, that is evidence that goes to falsifying the representation because the representation is carried so far. Their Honours reject that, in effect, attributing to Justice Ginnane, probably wrongly:

a narrower version . . . by which the test results –

this is paragraph 105:
were represented as substantially accurate –

Now, that, with respect, is odd because there is no substantial – that is, there is no order of accuracy permitted by the reporting of test results under the protocol. In any event:
represented as substantially accurate –

No one says they were not completely accurate. They were:
not only for the representative vehicle tested –

And now comes the departure:
but for the particular vehicle in question.

Now, that must involve what I earlier referred to as this second form of perhaps ill-explored replicability representation; this hypothetical testing before you have used the car much at all. That is, presumably, what their Honours were referring to in the last sentence of 105 with the disarming closing phrase:
albeit more than two years later.

Which, with respect, really shows that this notion of a standardised test has been completely blown apart, because the standardised test calls for a brand‑new vehicle to be tested, not a vehicle two years old after 50,000 of idiosyncratic kilometres. Then in 107, there is what we would respectfully submit is a straw man raised against us, this notion that the label is “confined to a test vehicle”. Well, it is. That is what its function is. Then, however:
irrelevant to the vehicle bearing the label.

It is not irrelevant, at least for the reasons already noted in paragraph 100, which we accept with respect to what a reader brings from knowledge of mass production and model and type, et cetera. But it does not, of course, mean that the relevance goes so far as to be a promise, prediction, warranty, let alone representation about how actual on‑road experience would fold out.
Your Honours will not lose sight of the fact that all this unfortunate litigation commenced with a grievance with on‑road performance by Mr Begovic. Now, that is not what the case is actually about legally, but that is how it started. And we actually do not know how his vehicle would have performed in a standardised test before the 50,000 kilometres and two years.

Their Honours then return in the middle of 107 to matters which we respectfully accept are appropriate in a section 18 setting to consider, namely, what do consumers understand concerning the circumstances of marketing, of make, models and classes, reasonably identical to other vehicles of the relevant type. Then they say:

the information would be of limited utility if it did not apply to the actual vehicle offered for sale.

I do not mean to trivialise it, but of course it applies to the actual vehicle offered for sale. The label literally applied to that vehicle. And it speaks of that vehicle because that vehicle is among the model descriptions in the label. Of course it applies. What it does not do is say anything about a future experience on the road beyond that which, by the consumer’s assumption, expectation or hope, depended on all the variability that ordinary experience and also the disclaimer spell out, will be experienced.
It certainly says nothing concerning a prediction of numerically expressed expenditure on fuel. Again, their Honours draw to attention that that is a function of mass production. Mass production also, of course, is notoriously something subject to quality control, and quality control notoriously affects something that might be called, in polite terms, variability; that which produces, colloquially, lemons as outlier delinquent examples of a particular model.

In paragraph 108, their Honours have, as it were, an on the other hand; namely, a danger of taking the figures too literally. Well, the figures are literal in the sense that they are numerical, apparently precise with some decimal points. That raises the question: well, if they are not to be taken too literally, can it really seriously be suggested that either the regulator, through the prescribed form, is intending to convey something less than exact, or that the compelled trader affixing the label is dragooned into representing something less than exact?

It is to be recalled that neither as to the terms of the disclaimer or as to the description of what the numerals describe can the trader do anything to the form of the label: cannot make the disclaimer bigger or smaller, cannot describe urban and extra urban as being artificial constructs, not likely to predict with any accuracy any particular individual’s ownership of the vehicle. We are not allowed to do any of that. The regulator does not contemplate that we would do any of that, so of course there must be something in the Court of Appeals admonition not to take it too literally, but the second shoe does not drop. In which case, how can you take it? Let alone, why would you attribute any penumbra effect to us? We are not allowed to control that. Their Honours add at the end of 108, as if it somehow modified or tempered the force of the argument I have just been putting, that the label:

does not suggest that anything inherent in a vehicle’s state at the time of manufacture –

which it maybe supposed to be on the eve of when the label has to be attached:
might cause it not to perform according to the label if it were to be tested at the time of sale.

That is true. The first thing is that, of course, is because the label in its prescribed form does not permit anything to be said about, in particular, variability; does not permit anything to be said about it would be more useful if a range were essayed rather than a point estimate. In particular, we are not allowed to say anything about the possible variability manifest from the fact that three different models or variants are described in this label, all obviously with their own specifications and options.
It is for those reasons that the comparisons and decisions of a consumerist kind that their Honours refer to in their paragraph 109 are, in our submission, confined by the way the regulation has proceeded to this conventional and artificial outcome of a laboratory test of a representative sample, which has its own usefulness, however unreliable it obviously is in terms of predicting actual volume of fuel consumed over distance for any particular purchaser.

Could I then move, in particular, to what we wanted to say in completion of propositions 6 and 7. In particular, the sequence of paragraphs 113 to 115 contain errors we have tried to identify in our written submissions.

GORDON J: Sorry, what were those paragraphs, Mr Walker?
MR WALKER: Paragraphs 113 to 115.
GORDON J: Thank you.
MR WALKER: It is clear from the first instance in the Supreme Court that you will see in the book at 74 in Justice Ginnane’s paragraph 94 that, as their Honours in the Court of Appeal, in any event, had recorded in their own paragraph 105, that, of course we never conceded that what Ms Winkelmann found two years and 50,000 kilometres later stands as a proxy for what would have been found had the vehicle been tested according to the protocols in the standard immediately after being driven out of the showroom. So, paragraph 113, perhaps uneasily, refers to that:
The applicants did not directly seek to challenge –

But, of course, we did – the whole of our case was challenging Justice Ginnane’s finding, in accordance with the way in which their Honours in the Court of Appeal understood it, that there was a replicability representation breached because the vehicle would not, within a reasonable time – say, two years, maybe the period of the warranty – that is what Justice Ginnane had said.
Their Honours then record what is correct, with respect; namely, that we did have an overall submission that even if attributed to us, contrary to our argument about attribution, and even if misleading or deceptive, contrary to our argument about what the representation and the facts permit, then nonetheless what we did was what was required by the law – the first form of the GMAC argument.

Your Honours will recall that the lead up to this part of their Honours’ reasoning includes in the analysis of the section 18 argument, back in paragraphs 78 and 79, this notion of a distinction between selling and presenting for sale, as part of a distinction between affixing the label and selling or presenting for sale. In 78, their Honours say of us that we:

appeared to confine the relevant conduct to the affixing of the label to the vehicle and then selling it.

Well, apart from quibbling with the word “confine” being used in description to a rather compendious course of conduct, we would say, yes, that is what the case against us was; that was how it was found to be.
Their Honours, however – in our submission, wrongly – identify and ignored important a fact; namely, that the vehicle with a label so affixed was presented to prospective purchasers, including the respondent, for sale. But being presented to prospective purchasers for sale is exactly what is involved in selling. That is selling. Selling is not just the final conveyance upon receipt of the stipulated consideration. There was nothing arbitrary about the way in which we identified the conduct.

Your Honours know, because of where I am coming to in 115, that this is used as a premise for a distinction between that which was compelled and that which was not compelled. I am going to come to that in a moment. Paragraph 79 concludes on that wrongful analysis, with that illusory distinction, that:

The relevant conduct therefore consisted of the applicants presenting a vehicle to the respondent for potential sale, with a label affixed . . . The anterior issue is whether the presentation of the vehicle with the label affixed was the conduct of the applicants, notwithstanding –

et cetera. Now, I do not want to further develop the distinction between the attribution argument, which we have put in writing, and the argument based on GMAC and the simple reading together of the two statutes, but, for present purposes, it all came to ground against us in paragraphs 114 and 115.
GAGELER J: Mr Walker, before you get there, do you accept the first sentence of paragraph 79?
MR WALKER: Yes, so long as – I may be unsafe here – so long as it is understood that presenting a vehicle for potential sale is conduct that culminates in selling a sale. Yes, yes, I do. Part of my argument that it is illusory to make the distinction in 78 is that sale is a course of conduct when one understands the expressions in both of the statutes in question – the MVSA and the ACL – and that it would be absurd to suppose that the only concern with respect to selling a vehicle without a label under the MVSA is at the final point of transfer of property. Everything anterior to that is covered by very explicit requirements under the MVSA, which is why the distinctions in 78 did not need to be made.
The first sentence of 79 is, of course, speaking of conduct for the purposes of a section 18 ACL analysis, which is differently frame, but it so happens that it is exactly the same course of commercial conduct. That is, the trade in which invitations to treat, or offers and acceptance engaged in, in order for a final transfer of property to be accomplished. It is the whole of that continuum which is involved in the course of conduct with which section 18 is concerned.

GORDON J: Does it also – the same course of conduct arguably picked up by the Motor Vehicle Standards Act in the market identified there.
MR WALKER:   I am sorry, your Honour, I am not sure I follow that.
GORDON J: It is the plight of the market.
MR WALKER:   I am sorry, I did not hear – yes, is the answer. Yes. So, it obviously extends back before there is any particular customer in mind.
STEWARD J: It includes both Mitsubishi and the dealership.
MR WALKER:   Absolutely.
STEWARD J: We do not have any findings about the relationship legally or contractually between the two?
MR WALKER:   Apart from what you infer from my standing here for both, no ‑ ‑ ‑
STEWARD J: All right.
MR WALKER: ‑ ‑ ‑ not really. As was noticed in the Court of Appeal, there was no relief against Mitsubishi in the Tribunal. The Tribunal taking the view that if Mitsubishi wanted to take anything up with the dealer it no doubt could.
STEWARD J: Thank you.
MR WALKER:   I understood your Honour’s question to go to commercial dealings other than that which is the subject of findings; namely, that Mitsubishi imported and sold to the dealer. But beyond that, no.
STEWARD J: I just want to know whether the title passes from Mitsubishi to the dealer and then to the customer, or what, but it may not matter because ‑ ‑ ‑
MR WALKER:   I do not think that detail is before the Court, and it would not matter. That is against our interests, if you like. We accept that the whole of the stream of commerce falls to be analysed for the conduct of participants in it and we do not, in particular, seek to drive a wedge between Mitsubishi and the dealer by, as it were, Mitsubishi dropping out of the picture at some stage earlier than the dealer.
On any view of it, it is Mitsubishi who, obedient to the law, affixed the label, just as it was Mitsubishi and the dealer, obedient to the law, who refrained from removing it or from scribbling some warning that this was not particularly useful, for example. In 114, having noted earlier that the general prohibition:

would have to be read in the light of the legislative judgment, in the public interest, that the conduct must be engaged in.

We submit, with respect, though understatement, that is clearly correct. In 115, it comes down to this, that their Honours call, perhaps not particularly usefully:
the wider representation about the specific vehicle –

That is a reference back to the findings I earlier noted, a kind of replicability:
A manufacturer and dealer are not under a legal obligation to offer any given vehicle for sale.

Well, yes, it is still a free country in that regard:
While they would be required to ensure the label was affixed if offering the vehicle for sale, nothing in the Act . . . was said to oblige them to offer such a vehicle for sale in the first place.

So, you do not have to be in trade or commerce and therefore – so, the argument is going to culminate, therefore it cannot be said that you are compelled to do something if in trade or commerce. In our submission, it is not even a debating point. It is plainly, in our respectful submission, totally at odds with the approach taken in GMAC. It was not compulsory in GMAC either to offer finance, let alone in particular forms. Then the matter is continued:
Still less do the Act or the Standard require that a vehicle be offered for sale in circumstances where the representation in the label is misleading or deceptive in respect of that vehicle.

That really brings to a head our main GMAC point. Of course it does not, but if there had been – and on a hypothesis against myself, we so argue – if there had been something misleading and deceptive in the conduct which includes and which is dominated by the figures in the label, then one thing is clear: Parliament is not saying, mislead and deceive; Parliament is saying, say this in this way, thereby abstracting from the class of conduct which is misleading or deceptive by another statute in the way Sir Anthony Mason describes in GMAC – that compelled conduct from the notion of being misleading and deceptive.
Of course, Parliament has not, even unwittingly, required somebody to be misleading or deceptive. If anything, it represents – to borrow the language of section 114 – a legislative judgment in the public interest that consumers will be assisted rather than impeded by that kind of information. That may be a judgment that is wrong. There is a deal to be said for the fact that it, perhaps, is crude and unrealistic, but that is not something which, as I say, can be sheeted home to us; an argument I put based both on our attribution argument and our main GMAC argument. Then, the final part of 115 is that:

the Act and the Standard presuppose that testing of a representative vehicle –

I interpolate to remind you that though there have been attempts for that zombie to arise again in this case, they are out – at least, I hope they are out, depending upon my reading of my friend’s notes of argument is accurate. But assuming there is no attempt to exhume this idea that the vehicle that was the representative tested – apropos the respondent’s car – assuming there is no attempt to say, well, that can be inferred not to have been representative, then what their Honours say in the last sentence of 115 rather, in our submission, detracts from their overall thesis. It is true, the Act and the Standard do presuppose – or, perhaps, assume, because of the mass production notion, but without any regard to the niceties of variability – they do presuppose:
that testing of a representative vehicle will produce figures that are –

and then comes a phrase with which we quibble:
substantially those which would be obtained under testing in accordance with the Standard of any and every vehicle of the type in question.

That needs to be modified in a way which any engineering graduate would well understand: so long as you apply margins of error and allowance for variability and any difference in kind imported by the difference of three different models and options, et cetera. That, of course ‑ ‑ ‑
GORDON J: Is that not what “substantially” means?
MR WALKER: I am about to say – that really means that giving content to the notion of “substantially” is will‑o’‑the‑wisp. One will never be able to get it to – in most cases – anything that is sensibly numerically available. That, of course, strongly argues against any such representation having been conveyed, but even more strongly argues against this being conduct of a kind which can be actionably misleading and deceptive, although the form of the label is compelled.
That leaves us only with this notion that there is no call to apply the approach taken in GMAC because this is not a case of being sought to be held liable for misleading and deceptive conduct by reason of engaging in compelled conduct. In our submission, it is completely unrealistic to say that the conduct compelled by way of the affixing and leaving in place of this label and the derivation of its content – willy‑nilly, our preference is commercially – it is totally unrealistic to suppose that that is something which becomes misleading and deceptive only because it is deployed in a market – that is, in trade or commerce – and entry into trade or commerce is voluntary, not compelled.

That is because, naturally, the standards in question are standards which are for the purpose of regulating the marketing – the treatment in the market – of these items of commerce. It is a compulsion that comes upon the exercise of a decision which Parliament plainly did not intend to impede; namely, a decision to trade. The notion that you would ever attribute to Parliament a warning not to trade, as opposed to an admonition to trade fairly, is, in our submission, completely at odds with an ordinary understanding of the approach to statutory interpretation, and completely at odds with the approach taken in GMAC.

Whatever may be said about the cultural and religious status of moneylending, one does not see anywhere in GMAC this idea – look, you have only gotten into this trouble because you are engaged in moneylending, you do not have to be a moneylender, therefore, do not trouble us with this argument that says we should not be held liable for misleading and deceptive conduct by saying something the government has required us to say.

May it please the Court.

STEWARD J: Mr Walker, just before you sit down, you have said nothing today about your Yorke v Lucas argument. I take it you have not abandoned or ‑ ‑ ‑
MR WALKER:   No. I do not want to say anything more than what we have said in writing, in particular, given the time.
STEWARD J: You have not abandoned your Yorke v Lucas argument?
MR WALKER:   No, your Honour.
STEWARD J: Right. Thank you.
GAGELER J:   Mr Moore.
MR MOORE:   May it please the Court. Shorn of the issue of compulsion – and I want to deal with that issue separately and in detail – but putting that issue aside for one moment, the GMAC issue, if I might call it that, which appears to be a central issue on this appeal – the present matter, we say, does concern a reasonably straightforward case of misleading and deceptive conduct on the factual findings of the Tribunal.
There are a number of issues that I might call false issues that have emerged this morning. The first is although there might be interesting question, your Honour Justice Gleeson has raised questions about the extent to which the label might make representations about what consumers might expect in the real world, we did not need to rely upon that aspect in our case because the vehicle was tested in accordance with the very same testing regime that was the subject of the figures that were put into the label.

GLEESON J: Mr Walker said that the testing regime only applied to a new vehicle.
MR MOORE: Well, that is not right as a statement of fact. As we will see, the actual test done was in fact applied to a vehicle that had many kilometres on the clock, so it is not the case that a testing regime only applies to a new vehicle, and the test at issue was not applied to a new vehicle.
That then segues into the further issue, which, we say, is something of a false issue, which is this notion that because there was a two‑year delay in the testing in the present case, no relevant evidence is available on which the issue can be determined. We say that is just not open to Mitsubishi in light of the way in which the hearing was conducted before the Tribunal where both parties conducted testing of the vehicle some time after the event on the footing that that testing would tell you something meaningful about the properties of the vehicle in accordance with the particular test regime, the subject of the standard.

GORDON J:   Where is the high point of that? Where do we find that as a matter of analysis to be able to make good that proposition? What do we have regard to?
MR MOORE:   Can I go to the paragraphs of the Tribunal’s hearing?
GORDON J:   Yes.
MR MOORE:   I was just outlining the issues that arise ‑ ‑ ‑
GORDON J:   Well, when you come to it, I would be very grateful ‑ ‑ ‑
MR MOORE: ‑ ‑ ‑ but I do want to go to that, your Honour. Then the third issue is that it is submitted that it is common ground that the content of the label is compulsory for this vehicle. That is not common ground. It was never common ground. It was Mitsubishi that has constantly made the assertion that they are fully compliant with all aspects of the standard. Our case was a much simpler one: it was simply that you have said something on a label which was not correct and therefore was a breach of section 18.
I need to take the Court to the provisions of the relevant standard, which do not have the effect that our learned friends contend for. Mr Begovic’s vehicle was displayed and sold with a fuel consumption label stating three fuel consumption figures – “Combined”, “Urban” and “Extra Urban” – and stating that the vehicle had been tested in accordance with Australian Design Rule 81/02. That is what the label literally says:

Vehicle tested in accordance with ADR 81/02.

Which in turn incorporates a standardised testing methodology known as the type 1 test. The actual fuel consumption, when tested in accordance with that same testing methodology, was nothing like that stated on the label, and was very much greater – up to 37 per cent greater for the “Extra Urban” test, 26.6 per cent higher on the “Combined Test”. This was not a case involving some minor deviation.
My learned friend this morning used the word “tolerably”. The Court of Appeal used the word “substantially”. The representation, as found, was that the vehicle, if tested, would have the fuel economy results substantially in accordance with that stated on the label, and on any view the very significant deviation in this case fell outside that. The purpose of the requirement to provide fuel consumption information for these vehicles is so that the consumers can compare the fuel consumption of different vehicles on a comparable basis.

It is to enhance the protection of consumers by providing them with useful information in a standardised and comparable form about products they are considering purchasing, which, for many consumers, may be the most expensive products they ever purchase, and where the information is relevant to the ongoing cost associated with using the product. It is not to weaken the protection of consumers by providing a licence to make incorrect statements about fuel consumption immunised from the conventional protection afforded by section 18.

In that respect, this provision is in common with many provisions in modern life that provide for the provision of information, of prescribed types of information, or the provision of information in prescribed forms. None of them are intended to exclude the application of the consumer protection provided by section 18.

GAGELER J: This is paragraph 3 of your outline. This is a legislative purpose is, is it, underlying the Motor Vehicle Standards Act, is that what you are saying?
MR MOORE:   Yes, your Honour. I want to take the Court to the Green Vehicle Guide, which provides some useful information about how this operates.
GORDON J: Are there two points being made? That that is, the purpose of the Motor Vehicle Standards Act, and second, that that purpose is not inconsistent with the ACL section 18?
MR MOORE:   Correct, your Honour.
GORDON J: Is that a distinction you draw with GMAC?
MR MOORE:   Yes, and, indeed, when we come to GMAC we will say that the ratio of that case is quite narrow. GMAC was a case where there was an attempt to say that a particular protection provided under a State Act should not apply, should not apply, because it would be in tension with section 52 of the Trade Practices Act, as it then was, and his Honour Justice Mason, with whom others agreed, said that it would not be assumed that section 15 would be read in a way that cuts down consumer protection by removing an Act, but I will come to that case in due course. That is not what we are dealing with in the present case.
GLEESON J: So, Mr Moore, you are saying that a reasonable consumer would only use this label for the purposes of comparing the performance of a possible purchase with another possible purchase. You are not extending it to the possibility that I was hypothesising, of comparing the performance of the new vehicle with the existing vehicle.
MR MOORE:   Your Honour, I would not put it quite like that, because I am certainly not ruling out that a reasonable consumer would read the label in that way. We do not need rely on that in this case. It may well be that a reasonable consumer would draw some information from the label about what their vehicle might do, but we did not seek out to prove the falsity of the label on that basis.
We did not say, look at the on‑road performance, it is of substantial variance from the label; we said, look at the tested performance in accordance with the standardised testing methodology the subject of the label, and the performance is nothing like that which is stated on the label. I do not mean to suggest that your Honour’s suggestions this morning would be in any way wrong. It is just that we did not need to rely upon any operation of the label in that sense.

GLEESON J: So, that is not part of your case.
MR MOORE:   It just was not part of our case, and our case was much more straightforward. Our case was, all right, tested in accordance with the same methodology, what does it show? That the vehicle has fuel consumption nothing like that which is stated on the label. In the present case, we say Mr Begovic was given information about his vehicle which, upon the factual findings of the Tribunal, was simply wrong. He purchased a vehicle that did not have the qualities or the performance that were stated on the label.
GORDON J: But that case failed. Those warranty cases failed in the Tribunal and were not sought to be elevated on appeal, or reagitated.
MR MOORE:   Sorry, your Honour, perhaps I have raised that in a confusing way. I simply meant that the label made a representation about the performance of the fuel consumption of the vehicle, and that was false. It was just the misleading and deceptive conduct case that succeeded.
GORDON J: I see.
GAGELER J: Just tying this back to the Court of Appeal’s judgment, sorry to be simplistic, but do you also accept paragraph 79, first sentence, is an adequate statement of the conduct? And do you accept that the second sentence of paragraph 109 is an adequate statement of the misleading or deceptive nature of the conduct?
MR MOORE:   I think the answer to that question is yes, your Honour, indeed, all that their Honours were saying ‑ ‑ ‑
GORDON J: Sorry, is the second sentence that, or is the second sentence of 109 the representation that you say was made?
MR MOORE:   Section 109, second sentence sets out a representation. That representation was false.
GORDON J: Is that the same representation that is at the end of 115?
MR MOORE:   I am not quite sure how to answer your Honour’s question, because I am not sure if it states a representation in the last sentence of 115.
GORDON J: I see. Maybe you are right.
MR MOORE:   Although the Court of Appeal referred to a slightly clunky phrase – “the testing replicability representation” – put another way, that is simply a statement about the properties of the object in question. If I say this thing weighs one kilogram, yes, I am making a testing replicability representation in the sense I say that if I put it on a scale, it will weigh one kilogram. If I test it now, it will weigh that. But, in a sense, put another way, the representation is made about the properties of the product that is being sold. Here, the property was that the fuel consumption – if tested in accordance with a particular standard, particular way of measuring fuel consumption – would be as stated on the label.
GLEESON J:   So, you are saying that the words at the time of purchase do not require testing at the time of purchase, but like a weight that will always weigh a hundred kilos, it can be measured at any point in time.
MR MOORE:   Correct – or, put more accurately, there was no issue in the Tribunal. It was not put to Ms Winkelmann once by anyone that her testing of the vehicle two years later did not indicate the condition of the vehicle, including when purchased, on the basis that, over that two-year period, you would expect to have some diminution in engine performance of such an extent that it would explain the 37 per cent departure in the performance of the vehicle.
GORDON J:   The problem about that, Mr Moore, is that the case evolved and, I think when you get to Justice Ginnane, he identifies particular representations which are then the subject of debate and ultimate decision, which is then refined further by the Court of Appeal. And in a sense, there is an absence of evidence. I do not think you can plug the hole by saying she was not asked in the sense that, if you accept, as you did in response to Justice Gageler’s question, that that is the representation at the time of purchase, then what evidence have we got that this vehicle did not comply or did not generate substantially correct results under standardised testing at the time of purchase?

MR MOORE:   But the case was always, including in the Tribunal, that the label was incorrect at the time of purchase, that the vehicle never had those particular characteristics. That was always the case and that was the case that was prosecuted in the Tribunal.
GORDON J:   At the moment, I do not know where the evidence is at the time of purchase. That is my difficulty.
MR MOORE:   But your Honour, the case was presented by both parties in the Tribunal on the footing that one could test a vehicle, test the vehicle that Mr Begovic had, to indicate what were the properties of the vehicle. Can I just go to the paragraphs of the Tribunal?
GORDON J:   I do not wish to take you out of the order, but that - - -
MR MOORE: No, I understand it is an issue that is looming large for your Honours. I want to deal with it at once.
GORDON J: Only when it is suitable, Mr Moore.
MR MOORE: Sorry, your Honour?
GORDON J:   Only when it is a time suitable to you.
MR MOORE:   No, I will deal with it now. The position before the Tribunal was that Mr Begovic called evidence from an expert, Ms Winkelmann, whose expertise was not challenged. Mitsubishi did not call any evidence from a similarly qualified expert. But Mitsubishi did rely upon what was called a Vipac test, which also was conducted some two years after the event. And both parties were putting forward their, in effect, rival results as to what was the performance of the vehicle. At paragraph 48 of the Tribunal’s reasoning, at page 19 of the court book – I am sorry, I should first go to 43 where:
Ms Winkelmann’s evidence is that the label information was not true for the vehicle.

And then at 44 - - -
STEWARD J: But at what time?
MR MOORE: It was just a general conclusion, your Honour. Then at 44, you see the recording that:
Mr Miller submitted that the difference between Ms Winklemann’s fuel consumption results and the label information was due to the different methodologies used.

There was some debate about some very minor differences in methodology. This was the only reason put forward for the difference. Nobody said no, the difference is because it is tested two years later, or anything of the sort. Then at paragraph 48, the Tribunal accepted Ms Winkelmann’s evidence:
that the NEDC results she obtained for the vehicle are significantly higher than the label information (26.7% combined). I accept her conclusion that the difference is unusual and excessive. I also accept her evidence that the variation expected in the results from different testing methodologies within ADR 81/02 is small, less than 1 or 2% and does not account for the significant variation seen in this vehicle.

At 50, can I just note this is not a case where Mr Begovic was complaining throughout. This is not a case where suddenly something happened to the vehicle two years later and he then raised some complaint. If Mitsubishi wanted to say no, you cannot rely upon a test conducted two years later to indicate the fuel consumption of a vehicle, that should have been put to Ms Winkelmann in the Tribunal, and one could readily expect that she might have had something to say about that topic, particularly having regard to the size of the discrepancy observable in the present case.
It was never put to her that the passage of time would have any impact on the results that she had obtained or would in any way cause a large discrepancy. Both parties proceeded on the footing that one could test the vehicle at the time of the hearing, or just before the hearing, for the purposes of assessing the vehicle’s performance.

GAGELER J: What was the representation that was found to be misleading or deceptive at paragraph 51? Is that identified earlier in the reasons?
GLEESON J: Is it in the second sentence of paragraph 52?
MR MOORE: Yes:
The label information was false based on the expert evidence. It misled Mr Begovic to believe the vehicle had certain fuel consumption characteristics it did not have.

STEWARD J: And that particular representation was not the one the Court of Appeal accepted as being conveyed by the label? In other words, the label did not make a specific representation about the fuel performance of the particular car that your client purchased?
MR MOORE:   I am sorry, your Honour. I was trying to find the representation, and I missed the substance of the question. I apologise.
STEWARD J: I thought that what was put at the Tribunal, I may be wrong, was that the label made a representation about the particular fuel consumption of that particular car.
MR MOORE:   Yes, but it has always been part of the case, and was part of the case in the Tribunal, that the fuel consumption we are talking about is fuel consumption when tested in accordance with the test.
GORDON J: I will ask a different question, how do you marry up paragraph 109 of the Court of Appeal’s analysis or description of the representation in the second sentence with that that is at 52, second sentence? Are they the same representation? I do not think they are.
MR MOORE:   Is your Honour referring to the fact that it refers to “at the time of purchase”?
GORDON J: It has a number of – arguably a number of differences. Mr Walker pointed to at least two, if not three.
MR MOORE:   The case before the Tribunal, and the case has been throughout that the label made a statement about the qualities of the vehicle, the fuel consumption of the vehicle, and that it was untrue, because, when tested, the vehicle did not have that fuel consumption. One can overcomplicate it in a way, but that is the essence of the complication, that was the essence of the case throughout.
GORDON J: Do you challenge the qualifications, or the additions to the representation at 109? Or do you say it is encapsulated in – I just cannot quite work it out, because at the moment, as I understood, the way in which it is put against you, 109 has a number of additional things. One has “substantially correct”, one has “at the time of purchase,” at least those two qualifications. I might be being slow, Mr Moore, but they do not seem to be reflected in ‑ ‑ ‑
MR MOORE:   I understand the question, but the difficulty is that no issue arose before the Tribunal about the timing of testing. One has to look at the forensic landscape of the case that has been conducted. Mr Begovic’s case was that the information on the label was untrue because the vehicle did not have that fuel consumption. Nobody said, but you have tested it two years later, and what do we know about the information at the time of purchase? It was a statement about the fuel consumption of the vehicle. Nobody took the point about whether there might be some variation between the time of purchase or the time of testing. It was a statement about the vehicle.
GAGELER J:   You might also legitimately say that there is no ground of appeal that asserts that the representation at the end of paragraph 109 was not shown by the evidence to be false.
MR MOORE:   Yes, your Honour. This issue of time delay is really an issue that it was to be raised – it had to be raised, factually, and had to be raised with the witness who was giving evidence about this.
STEWARD J:   But does it also turn upon what Ms Winkelmann was asked to – what questions she was asked to answer in order to marry the representation found by the Court of Appeal with her expert testimony? It may not – regardless of how the case was run below, because of the way the representation has changed over time, it might be problematic if Ms Winkelmann was never asked to answer the question about the testing of the car as at the time of purchase.
MR MOORE:   I do not have before me the precise question that was asked of Ms Winkelmann, I am sorry, your Honour. I understand your Honour’s question.
STEWARD J: Maybe have a think about it.
MR MOORE: All I can say is one reads the decision of the Tribunal as a whole, it is tolerably clear what was in issue, and timing simply was not in issue. Ms Winkelmann was asked to do a test, Mitsubishi did a test, Mitsubishi put forward the Vipac test ‑ ‑ ‑
GLEESON J: Looking at page 11 of the appeal book, it looks as though what Ms Winkelmann did was responsive to what Mitsubishi did.
MR MOORE:   Correct, your Honour. Mitsubishi was putting forward this Vipac test and said that that is showing the fuel consumption of the vehicle, and Ms Winkelmann put on evidence. That was the forensic contest. There was just no forensic issue about what the elapse of time did to a vehicle. It is an obvious question to ask, if that was an issue, to put to Ms Winkelmann that the reason your test shows that discrepancy is because this vehicle is two years old. She may well have said, that type of age would have, at most, a one per cent impact on the performance of an engine. One is entirely speculating now, but it was just never explored. It was never taken up with the witness.
STEWARD J:   Well, in circumstances where Mitsubishi were not legally represented, it might be said that it should have been a matter clarified by your side.
MR MOORE:   Yes, but I think, your Honour, as is clear from the proceedings before the Tribunal, no one had this in their mind, and this is an issue that has been raised subsequently.
STEWARD J:   It would seem odd that it was not in their mind, given expiration of time is a well‑known factor in determining the fuel efficiency of a car, older cars are less fuel‑efficient.
MR MOORE:   Yes, except, as we will come to in a moment, the test itself was done on a car that had done 10,000 kilometres, and what we have been told by motoring journalists over the years is that cars perform better when they are run‑in, so the notion that the elapse of time necessarily leads to diminished performance is not necessarily an obvious ‑ ‑ ‑
STEWARD J:   It may not necessarily, but you would have thought it was at the forefront of everybody’s mind that it might be relevant.
MR MOORE:   Yes. The reality is that there was a vehicle, Mr Begovic was complaining about it, it took some time for a series of processes to be undertaken, which the Tribunal sets out: they went for a drive, they did a test, Vipac did a test, then Ms Winkelmann did a test, and no one ever said, hang on, while we have been conducting this case time has elapsed and that might affect the result, and if somebody was to put that, it really needed to be put at the hearing.
JAGOT J:   I mean, it clearly was – that issue clearly was before the Court of Appeal in ground 3, that the two years made a difference and ‑ ‑ ‑
MR MOORE:   Yes, but by that point there is not anything one can do about the evidence, or the way that the case forensically had been run before the fact‑finder. Now, we say that it is commonplace in the era of standardised mass production for statements to be made about the qualities and characteristics of a class of products, for example, by model. If I am in a shop and the salesperson tells me that the particular model of television I am considering has 5 million pixels, I do not assume that he or she has taken it out of the box and counted the 5 million pixels. Rather, we understand this type of statement to be based on uniform manufacturing processes. One could multiply examples endlessly.
It is also commonplace for there to be information requirements imposed on manufacturers and retailers. If I buy a processed food item in Australia, the packaging will provide me with a list of ingredients, orders their weight, country of manufacturer, a nutritional information panel telling me how much sugar, how much salt, and so on, is in the product. We say it cannot sensibly be suggested ‑ ‑ ‑

GAGELER J: Mr Moore, could you speak up a little?
MR MOORE:   Yes, I am sorry, your Honour. It cannot sensibly be suggested, we say, that the mere requirement to provide information, even in a prescribed form, confers a licence to provide inaccurate information, or relieves one from the obligation under section 18. That is, if the packet says that a children’s cereal is four per cent sugar, but it is actually 40 per cent sugar, it would not be the case that consumers have no remedy.
GLEESON J: That might be dealt with under a different regime – under the Food Act, for example.
MR MOORE:   There are a multitude of regimes, but the point is simply that the mere fact that one is required to provide information, and required to provide information in a prescribed form, is generally designed to assist consumers. It is pro‑consumer because it is saying you must provide certain information. It does not ordinarily relieve one from ‑ ‑ ‑
GAGELER J: Do you not have to assume for the purpose of this argument, that that which is compelled is misleading? To deal with the GMAC argument, do you not have to assume that?
MR MOORE:   Your Honour is right, and that is why I want to come to what happened in GMAC, because in GMAC the notice in question was in an unalterable form. That is not the case in relation to the Motor Vehicles Standard Act, I accept that, your Honour; that is a key issue. Can I start with the provisions of the Australian Design Rules, which are found in the – I think your Honours might have them in a different form, but they are in the part A of the book of authorities at page 176. Can I start with clause 4.
JAGOT J: Of which one?
MR MOORE:   Of the Vehicle Standard 81/02 – of the standard itself.
JAGOT J: Of the standard itself, yes.
MR MOORE:   Yes. Which is headed, “Requirements”.
GORDON J: And that is volume 1?
MR MOORE:   Yes, at page 177.
JAGOT J: I must just have to still get you to speak up a bit, sorry.
MR MOORE:   I am sorry, your Honour. I will speak louder. In the joint book of authorities, it is at page 177. It provides that:
Every vehicle shall have applied to its windscreen a fuel consumption label or energy consumption label meeting the specifications of the appropriate label illustrated in Appendix A.

Every vehicle shall have this applied. And 4.3 provides that:
The fuel consumption label shall be applied to vehicles powered by an internal combustion engine only and to hybrid electric vehicles.

Then 4.5 provides that:
4.5Subject to the requirements of paragraph 5.5 . . . the manufacturer shall report:

4.5.1for vehicles specified in clause 4.3 –

in other words, internal combustion engine vehicles:

the three fuel consumption results and three carbon dioxide emissions results for the vehicle –

And we emphasise the words “for the vehicle”:

from Part One (urban) and Part Two (extra‑urban) of the Type I test and from the full (combined) Type I test, as determined in accordance with Annex 6 –

This vehicle standard is a particular form of adoption of the UNECE regulation. It does not simply apply the regulation. It does not make that regulation part of Australian domestic law. Rather, what it does is it picks out certain limited aspects of it and applies requirements in accordance with those aspects. So, in this paragraph or this clause:
the manufacturer shall report . . .
fuel consumption results . . . for the vehicle from . . .

the Type 1 test . . . as determined in accordance with Annex 6 –

And when one goes to Annex 6, it specifies the requirements for testing. That is to be found at page 241 of the authorities book and it provides in 1.1 that:
Emissions of carbon dioxide (CO₂) and fuel consumption of vehicles powered by an internal combustion engine only shall be determined according to the procedure for the Type I test as defined in Annex 4a of Regulation No. 83 in force at the time of the approval of the vehicle.

Can I note, though, that in paragraph 5.2 of the Standard, back on page 178 – sorry, 5.3 on page 179, it is provided that:
References to ‘Regulation No. 83’ in Appendix C are amended to read ‘Appendix A of ADR 79/03 or ADR 79/04.

That is almost absurdly complicated, but what is in fact happening, if one goes to those Australian Design Rules – it is not in the materials – they set out a version of regulation 83. So, what this standard is doing is using a fixed‑in‑time version of regulation 83 which sets out the complete requirements of the type 1 test and imposing that as the test by which the vehicles in question have to be tested.
So, it is adopting, in a particular way, the various versions of the UNECE regulations, rather than simply saying, regulation 83 – as it applies from time to time – in an ambulatory sense. Your Honours, I note the time.

GAGELER J: Yes. We will take the luncheon adjournment.
AT 12.47 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.13 PM:
MR MOORE: Thank you, your Honour. Just before lunch I was dealing with Annex 6, and pointing out that it in effect sets out a testing procedure in turn by incorporating more detailed testing procedures for the type 1 test and otherwise making provision for how the relevant test is to be carried out, so that paragraph 4.5 of the standard incorporates that part of regulation 101 and provides that the manufacturer “shall report” for the vehicle:
three fuel consumption results and three carbon dioxide emission results . . . . determined in accordance –

with that procedure in Annex 6 – that is, the operation of 4.5. The manufacturer can choose, in effect, how it tests the relevant results for the vehicle; as a matter of practice, it is unsurprising that a manufacturer might test a representative vehicle and then report the figures for that vehicle as figures for the class of vehicle represented by that type. But, in effect, that is a matter for the manufacturer.
GLEESON J:   Does that mean that Mitsubishi had a discretion about whether it reported Triton, GLX, GLS, Exceed on one label?
MR MOORE:   Correct. That is one example of where the manufacturer would have discretion. This manufacturer chose to report the results for, in effect, three models, but a manufacturer could undertake a different approach.
GLEESON J:   But does that mean that they tested three models or does that mean that they had a discretion about whether to test one for three models?
MR MOORE:   I cannot answer that question precisely. When one goes to the testing data and, for the Court, I want to refer to it in a moment, various tests are done on different weights of vehicles, but at the end of the day, a single set of three figures is supplied for all of the Triton vehicles.
Now, to take a modified example of a question asked by your Honour Justice Gordon this morning, what if Mitsubishi decided to manufacture a batch of vehicles with a slightly different engine technology or construction methodology such that those vehicles had inferior fuel consumption and sent them on a boat out to Australia? Say it send a thousand of them over the water to Australia. What Mitsubishi could then do is to report fuel consumption figures for those vehicles consistently with this standard. It would not have to simply rely upon the previously reported fuel consumption figures for Mitsubishi Triton vehicles. It is a matter for Mitsubishi.

GORDON J: Would that mean a different label?
MR MOORE: Would mean a different label – quite. Now, 4.6 then provides that:
The values displayed on the fuel consumption label –

So, that is the label itself – what is on the label are four figures. It is three fuel consumption figures, being the fuel consumption:
for fuel consumption, the urban, extra-urban and combined values reported for the vehicle under clause 4.5.1; and
for carbon dioxide emissions, the combined value reported for the vehicle under clause 4.5.1.

That is what appears, then, on the label. They are the figures reported by the manufacturer for the vehicle. And, of course, whilst the label is prescriptive in form – entirely prescriptive in form, as my learned friend Mr Walker has pointed out by reference to what appears at page 182 – the contents of the label, the figures themselves, are not prescribed by this regulation.

GAGELER J: It was put to us that the testing procedure by which those figures are arrived at is highly prescriptive, and it is at least implicit in the way in which the case has been put that it was followed in this case.
MR MOORE: Well, we would say not quite so, because, yes, the testing procedure is explicit – one sees that by the reference from Annex 6 that in turn refers to the full description of the type 1 test – it is very, very detailed, very prescriptive. But what precisely is being tested is not prescribed. What the manufacture has to do is report results for the vehicle. The manufacturer therefore chooses as to how it would report results for the vehicles it proposes to sell.
To take the example, assume it had a thousand vehicles that had different characteristics, it would presumably conduct a test of some samples of those vehicles, or a sample of those vehicles, and report figures for that particular batch, or not, depending on its own assessment of how it should properly report figures. I am sorry, your Honour?

GORDON J: No, I interrupted you.
STEWARD J:   Is that any different from saying it has the capacity to select what cars it will have enter the market, to use the language of section 14?
MR MOORE:   Of course, it could choose what cars it has entered the market, but my point is simply, having chosen to put a particular car into the market, it is not – the ultimate proposition is it is not mandatory to report an inaccurate fuel consumption value for a car that is actually being put into the market; that is the ultimate proposition.
GAGELER J:   So, how do you get to that ultimate proposition? There are a couple of intermediate steps, I think.
MR MOORE:   Well, I mean, if you were taking it to an extreme you could test every single vehicle. I am not suggesting that that would be a practical result, but a manufacturer would have to satisfy itself that the reporting it was making of fuel economy was accurate for the vehicles it was sending in the course of trade to Australia. If it knew, for example, that it had a batch that had different characteristics, it could not sensibly rely upon some old test for some batch of vehicles with some different fuel consumption. It would need to test one or more of the vehicles to work out what their fuel consumption was.
GORDON J:   But if they did not test them – just take that example, and they did not test them, and they were then tested at or around the time of purchase, consistent with the representation, you would say that was conduct which was misleading and deceptive?
MR MOORE:   Correct.
GORDON J:   So, then, if I pare that back a bit, that did not require – as we know, does not require knowledge, for misleading and deceptive.
MR MOORE:   Correct, correct. Your Honour is quite right in making the observation that it does not require knowledge. We do not know why the vehicle here – on the factual findings of all the Tribunals – the vehicle here did not have the fuel consumption that had been reported by Mitsubishi for this model of vehicle. We do not know why. It might be that this individual vehicle had a manufacturing fault. It might be that a whole batch of vehicles had particular characteristics that were not consistent with previous vehicles supplied for testing. But a full range of possibilities arise. We do not know why. All we know is that the particular vehicle did not have a fuel consumption that matched the label.
GLEESON J:   The language of the standard talks about vehicles’ “make, model and variant description”. So that, obviously, assumes some consistency not only as to make but to model and variant. I am looking at Appendix A, Fuel Consumption Label Specifications, 1.12.1.
MR MOORE:   Yes, yes. But Appendix A sets out various pieces of information that have to be provided. Yes, your Honour is right, that includes the “make, model and variant”. As I said earlier, it would be commonplace, or common practice, for a manufacturer to put a particular model up for testing and no doubt, in most cases, consistent manufacturing practice is such that each vehicle coming off the assembly line – it has the same engine produced by the same means by the same technical specifications and the like – will have the same properties.
Throughout the course of trade, manufacturers rely upon that. So, when someone makes a statement about the power output of the air conditioner that you are having installed, we assume it is going to be made in a consistent way through a consistent, quality‑controlled manufacturing process such that that is true for all examples that are being sold, and that is why packaging material, advertising material, all make statements about properties of a particular product.

But at the end of the day, the proposition I am making is that it is not compulsory, it is not mandatory for Mitsubishi to make some statement on a label that is not correct for a particular vehicle, for whatever reason – for whatever reason. Can I note that there is then a provision in paragraph 6 of the standard headed “Alternative Standards” – or clause 6.

GORDON J:   This is in annexure 6?
MR MOORE:   In the standard itself. I was looking at clause 4.
GAGELER J:   Alternative standards?
MR MOORE:   Alternative standards, yes. That provides that:
the values for fuel consumption, carbon dioxide emissions . . . declared for the vehicle by the manufacturer in accordance with the requirements of United Nations Economic Commission for Europe Regulation No. 101 –

So again, it is for the vehicle. It is the values declared:
by the manufacturer in accordance with the requirements of –

the regulation. Then its long title is set out:
are deemed to be equivalent to the values for fuel consumption and carbon dioxide emissions, energy consumption and range required under clause 4.5 of this vehicle standard.

That is a different form of incorporation of UNECE Regulation 101. That incorporates, in effect, whatever other requirements of that ECE regulation – and if one goes to the regulation ‑ ‑ ‑
GAGELER J: Has that got any application to Mitsubishi? Is it relevant in this case? Clause 6.1, it is a European standard. It presumably means if you purchase a car with a European equivalent on it, that could have ‑ ‑ ‑
MR MOORE:   As I understand it, it is relevant because Mitsubishi reports the values that were determined for the purpose of obtaining a type approval under the UNECE regulations.
GORDON J: Can I ask another question? What is the significance of this clause, then?
MR MOORE:   It is an alternative means by which you can supply ‑ ‑ ‑
GORDON J: How does that help your argument?
MR MOORE:   It does not help my argument. I am just making sure that I cover all bases.
GORDON J: I see. Thank you.
MR MOORE:   In particular, if Mitsubishi is going to rely on it, I want to make sure I have explained it in advance. If my learned friend does not rely upon it, then ‑ ‑ ‑
GAGELER J: Can we ignore it?
MR MOORE:   ‑ ‑ ‑ I can stop talking. But, as I understand it, this is an alternative means by which you can supply information based on the requirements of UNECE 101.
GAGELER J: It is just not obvious from the face of clause 6.1 that that is so. Anyway, you are not pursuing that.
MR MOORE:   I readily accept that, your Honour. I am trying to understand the precise metes and bounds of this regulatory scheme is a little difficult. When we come to the actual application, what Mitsubishi does is it identifies information from an application – from a type approval application, and a type approval granted under the regulation as information to satisfy its requirements. The point I want to make and I will then move on is that the requirements of that are simply more paragraphs about testing – if you read the regulation as a whole, one will obtain more paragraphs about testing. For example, paragraph 5, clause 5 on page 197 of the book, or in Appendix C, likewise clause 5 on page 224 of the book, which provides specifications and tests.
Can I then indicate what happened in the present case. There is a book of materials called the appellant’s book of further materials, which I hope the Court has. The first document commencing on page 6 of that book is what is described in the affidavit of Mr Voss, our learned friend’s instructing solicitor, as the fuel consumption values declared and approved for the model of vehicle in issue. What is actually behind that exhibit is a type of approval under the European regulations, and I emphasise that the standard we are dealing with here does not simply import type approvals. It does not apply type approvals in Australia.

What it does is it applies testing regimes from the relevant ECE regulation. That is why I said it is a partial adoption of that regime. Under the full regime, manufacturers obtain type approvals for types of vehicles by submitting testing data and obtaining, in effect, approval which they can they insert on their vehicles when they sell them in Europe and other places.

GORDON J: As you said, this was declared and approved. Did you mean to say declared and approved, or did you mean to say declared?
MR MOORE:   The type approval itself is something that is approved by some testing authority under the European regime. I am not suggesting that has any direct application here, it does not.
GORDON J: Okay.
MR MOORE:   But what it is used for by Mitsubishi is as a source of testing data, testing information, which is provided to the Commonwealth authorities. Mitsubishi uses that to satisfy the Commonwealth authorities that there is some test data that supports the values that they are nominating pursuant to the standard we have just been looking at.
JAGOT J: Mr Moore, I am a bit lost in the sense of how would a purchaser ever know any of what lies behind any of this?
MR MOORE:   None, none. I am simply – the point has been made against us to say that Mitsubishi, in effect, has to put a label on the vehicle, even if the label is declaring something that is not applicable to that particular vehicle, so that even if the vehicle had fuel consumption much higher than the information on the label, there is mandatory conduct because they are required to put the label on in a particular form. That is Mitsubishi’s contention, which then attracts, they say, the application of the GMAC principle.
JAGOT J: Is there an assumption there that either knew or ought to have known that the particular vehicle ‑ ‑ ‑
MR MOORE: No, there is not any assumption underlying their argument. They are simply saying – as I understand it, they are simply saying we are compelled to put this particular label ‑ ‑ ‑
JAGOT J: No, I mean in your case, is there some kind of assumption?
MR MOORE:   No. And all I am pointing out is they are not compelled to put – there is no mandatory conduct to state any particular value. We do not know why ‑ ‑ ‑
JAGOT J: I mean, if that means nothing more than – I guess in theory, a manufacturer could choose to test every single car in accordance with the standard and stick a label on it, I guess, at that level, that is true.
MR MOORE:   Yes, but it is a bit more than that. As I said, we do not know why Mr Begovic’s vehicle has fuel consumption 30 or 40 per cent higher than is stated on the label. We do not know that. But it just cannot be the case that Mitsubishi can say if we made an inaccurate representation about the fuel consumption of this vehicle, we have that wrong, nevertheless, we are immunised from the application of section 18 because we are forced to make that representation. We are forced to say the wrong thing on a fuel label because it is mandatory conduct. That is the essence of their argument, and we say that, pursuant to this regime, you are not forced to do that at all.
JAGOT J: Right. Okay.
GAGELER J: Because the options you have are what?
MR MOORE:   The options you have are to make sure you properly understand the fuel economy of the vehicles you are selling.
GORDON J: Sorry, I missed that. Could you say that again?
MR MOORE:   To properly understand – including, if necessary, by way of testing – the fuel economy of the vehicles you are selling.
GAGELER J:   Well, we are talking about the label and the figures in the label. So what options are available there?
MR MOORE:   To report accurately fuel economy figures for the particular vehicles being sold.
GAGELER J:   Well, under the standard there is a requirement to conduct particular tests in a particular way. You are saying you can manipulate that process in some way to come out with different numbers?
MR MOORE:   Well, I am not suggesting Mitsubishi should manipulate, I am saying there have been lots of cases about manipulated fuel economy tests. We do not know why Mr Begovic’s vehicle does not accord with the label, but Mitsubishi can report accurate figures for the vehicle that it is putting into the marketplace.
GLEESON J:   So, they are not entitled to assume that the testing regime that leads to the label is accurate?
MR MOORE:   When your Honour says they are not entitled to assume, in effect, it is a matter for them. It is like all representations of products. If somebody says, I am selling my air conditioner and it has a certain cold energy performance, it will produce a certain amount of cooling, they have to have some process so that they can satisfy themselves that that statement is accurate. It is no different here. If Mitsubishi is going to be making representations about the fuel economy of its vehicles, it needs to have some process ‑ ‑ ‑
GLEESON J:   But it is different, depending on the facts, because in this case as I understand it, the Commonwealth Government has said, thou shalt put on a label that reveals figures based on a particular test. What you seem to be saying is that Mitsubishi needs to go behind that test and work out whether or not that test produces accurate figures.
MR MOORE:   Depending on the circumstances, yes or no.
GORDON J:   Is your case really this: I have a regime which prescribes standards including testing, which give rise to a requirement that if I wish to enter the Australian market, I have to put a label on a car which reflects those standardised testings giving . . . . . to certain results.
MR MOORE:   Yes.
GORDON J:   Mitsubishi have a choice whether they do it individually by car or whether they adopt some other mechanism. Here, they do it by representative car by reference to make, model and type.
MR MOORE:   Yes.
GORDON J:   With mass production of cars that is not surprising. They themselves then must take or make, in effect, a commercial decision about the extent to which they undertake that testing, at what point, and how. And where you have a car which has that label attached to it, whatever the regime or choice made by Mitsubishi, if I can show that my car – that is, the car that I have had delivered – is not in the ballpark of that which is on the label, that is sufficient for misleading or deceptive action, even though – regardless of knowledge. Is it any more than that?
MR MOORE:   Correct, your Honour. That is it. But there is another alternative for Mitsubishi.
GORDON J:   Well, let us just deal with that for the moment. That is one way you put your case.
MR MOORE: Correct, your Honour.
GORDON J: I think I have that. And what is the alternative?
MR MOORE:   Sorry, there was just one alternative course for Mitsubishi. Your Honour says they can either test the vehicles, but another alternative course is to make sure that you have manufacturing procedures so that ‑ ‑ ‑
GORDON J:   Well, that is what I am saying ‑ ‑ ‑
MR MOORE:   Quality control. Quality control is used so that the vehicle ‑ ‑ ‑
GORDON J:   Yes, they are commercial decisions about testing, about making an assessment in‑house, about the risk of defect percentages by reference to manufacturing control. A whole range of commercial things go into that assessment. That is accepted. Is it any more than that, the way I have put it to you?
MR MOORE:   No, it is not, your Honour.
GORDON J:   I see.
MR MOORE:   But to pick up something that your Honour Justice Gageler asked me about, the requirement is to report fuel economy values tested pursuant to a testing methodology. So, one can then conduct however many tests Mitsubishi thinks it is prudent to conduct to satisfy themselves that the statements they are making about fuel economy when tested in accordance with that methodology is correct, and if it turns out that vehicles are coming out of the factory which have results such as this one, nothing like the statement on the label, then something has gone wrong in the process.
GAGELER J:   Can I just ask one question that arises out of the way in which Justice Gordon encapsulated your case?
MR MOORE:   Yes.
GAGELER J:   Do you say that it is open to the manufacturer in compliance with the standard to choose not to test a representative vehicle but to test every vehicle? It is not the way I read it.
MR MOORE:   Well, all that Mitsubishi has to do is report results assessed in accordance with that methodology. As I said, what it really is doing is saying, if tested in accordance with the methodology, that is the result you get for the vehicle. It can choose what testing it undertakes to report results for a vehicle tested in accordance with that methodology.
STEWARD J:   It is choice between a representative vehicle or all vehicles?
MR MOORE:   Well, not necessarily. It could say, well, let us make sure that we regularly test a vehicle ‑ ‑ ‑
STEWARD J:   Or test 23 versus 100. Is that what you are saying?
MR MOORE:   We say if for some reason to think, for example, the factory might produce some variation, or something has happened, or we have a new production line, you might need to test that the vehicle being produced in fact continues to have the fuel economy.
STEWARD J:   But how is any of that relevant here, given that it was not disputed that the label was accurate and did comply?
MR MOORE:   No. What was not disputed was that the label accurately stated the result of the particular test that was conducted on the test vehicle, but it is a matter for Mitsubishi as to what information it reports.
STEWARD J:   At paragraph 77 of the trial judge, it says:
There being no dispute that the test results shown on the label were accurate as to the testing that Mitsubishi had relied on to obtain approval for the vehicle model –

MR MOORE:   Correct, so when one goes to the test that was actually conducted, we were not seeking to say there was something wrong with that test, or that the vehicle that was tested did not have the fuel economy results stated on the label, but something has gone wrong. The vehicle that has actually been presented for sale has very different fuel economy results. All I am dealing with is a submission made by Mitsubishi to say that does not matter, ordinary principles of misleading and deceptive conduct do not apply, we cannot be liable for the fact that the vehicle we actually put into trade has dramatically differing fuel economy results because it is mandatory to put this information on the label. All I am pointing out is it not mandatory under the regulation to put those particular results on the label for this particular vehicle.
GORDON J: While we are talking about the testing, at some point – I think it was before lunch – you said something about 10,000 kilometres.
MR MOORE:   Yes.
GORDON J: Where do we find all of that, and is that relevant?
MR MOORE:   I am just about to come to that page. I was showing what the test information was that was provided. In the document I was just looking at, the test results commence on page 13 of the document – court book numbering. This is a test from manual gearbox car, which Mr Begovic’s was not.
GLEESON J: The label says auto, does it not?
MR MOORE:   Correct, and so this is the first set of results. The second set of results commences at page 21.

GLEESON J: Just pausing at page 14, in the middle of the page where it says:
Mileage . . . 8492 –

MR MOORE:   Correct. That is the mileage of the test vehicle. So, the vehicle was tested at 8,492 – I am not sure whether it is miles or kilometres.
GORDON J: It says kilometres, at the end of the sentence.
MR MOORE:   Yes, I am just not sure whether in brackets means – put kilometres in brackets. But, yes, it could well be kilometres.
GORDON J: I see what you mean.
MR MOORE:   It could well be kilometres, your Honour. But anyway, it is certainly not zero. Then, page 21 is the information provided for automatic vehicles. You see at the foot of the page:
The tests were carried out according to the following specifications:
-UNECE Regulation No. 101 –

Over at 168, this particular vehicle, the mileage is 9,497. At page 23, the transmission is recorded as automatic. Then at page 25, a series of test results are reported. They include the figures that are on the label, but there are various other figures. Then, commencing at page 77 is the document that is filled out by Mitsubishi ‑ ‑ ‑
GORDON J: Sorry, I could not hear that, Mr Moore.
MR MOORE:   I am sorry. Page 77 is the document completed by Mitsubishi – in effect, pursuant to 4.6 of the standard, as appears towards the bottom, in section 5. The figures that are provided in section 4, taken from the ECE type approval are the figures that appear on the label, and then section 5, these are the figures that will be declared by the manufacturer on the fuel consumption label.
STEWARD J:   Do I take it there is some form of audit process? They do not just take this form at face value and say tick? They want supporting documentation?
MR MOORE:   I think, as I understand it, the supporting documentation ‑ ‑ ‑
STEWARD J: Is what we have just seen?
MR MOORE:   ‑ ‑ ‑ are the test results that we have just seen ‑ ‑ ‑
STEWARD J: Yes. All right. Thank you.
MR MOORE:   ‑ ‑ ‑ certified by testing officials and the like from other jurisdictions, and Australia.
STEWARD J:   And the end result is that you need to get approval for the model then to be able to be sold in the market in Australia?
MR MOORE:   You need to establish to the Commonwealth Government that you have some test result that corresponds to the thing you are selling, yes.
STEWARD J:   And, inferentially, that happened here because ‑ ‑ ‑
MR MOORE:   Inferentially, that has happened here in the way that we are seeing by the provision of these test results.
STEWARD J:   All right. Thank you.
GAGELER J:   I am not quite understanding the relevance of this Commonwealth Government approval process, nor am I understanding where it has its legislative basis. We were taken to the standard, and it seems to be self‑executing. I mean, it just has certain requirements, 4.6 being one of them.
MR MOORE:   Yes.
GAGELER J:   What is the relevance of this document you are taking us to, and where does it fit in?
MR MOORE:   This is the reporting by the manufacturer pursuant to clause 4.5 of the standard.
GAGELER J:   I see.
MR MOORE:   I cannot point to any other legislative basis for it, and it appears, as far as I can tell, that the Commonwealth department has set up certain administrative procedures so that it can, in effect, receive the information that is reported to them pursuant to the standard, and has forms and the like for that purpose.
So, the short point, we say, is that it is a matter for Mitsubishi as to how it reports this information, what evidence it provides, what testing it undertakes to satisfy itself that it is reporting fuel consumption figures for the vehicle referred to in the design standard, which is every vehicle sold. So, every vehicle has to have a label and the obligation is to report fuel economy figures – fuel consumption figures for that vehicle.

STEWARD J:   When you say they can choose, what they really want to do is choose to comply. They cannot produce numbers here that are wrong. They have to do their best to comply with the standard issued by the Minister and, in order to be able to comply with section 13(a) and 14 – which are criminal sanctions – they have to get their figures right.
MR MOORE:   Yes, that is right, your Honour.
STEWARD J:   So, it is not a big discretion, it is a narrow one for the purpose of ensuring compliance.
MR MOORE:   The way that this would normally be done and the way that it is traditionally done – which is no doubt why the Department has forms in the form that it does – is that a manufacturer will do a test on a model on a representative example of the model and then will organise its manufacturing processes so that each vehicle that comes off the production line has the fuel economy that matches the representative sample. If one fails to do that – which are making statements about the fuel economy – then one may be liable for misleading and deceptive conduct. That is true of any type of statements made about properties.
STEWARD J:   You might be liable under the Motor Vehicles Standards Act.
MR MOORE:   Yes, quite, you might be.
STEWARD J:   And, under section 106.
MR MOORE:   Yes – and under section 18. I am just resisting the notion advanced by Mitsubishi that, well, we cannot be liable because the precise form of the label, including all of its contents, are completely beyond our control and, therefore, we are in – what they say is – a GMAC situation.
The next point I want to address is the decision of GMAC itself, which is in volume 137 of the Commonwealth Law Reports, page 551 – sorry, page 545, I beg your pardon. What occurred in this case is that there were requirements under the Consumer Credit (South Australia) Act to issue a notice to consumers – the form of the notice is found at the bottom of page 556 of the reported decision. So, it is a prescribed form of notice, cannot be varied. And GMAC made the somewhat ingenious argument that because there were inaccuracies in the notice, it could not be required to issue a notice in that form because that would be inconsistent with section 52 of the Trade Practices Act, because to issue the notice would itself be misleading and deceptive conduct.

His Honour Justice Mason in his judgment analysed the various things that were said to be misleading about the notice and found that all but one small matter were not misleading and deceptive, but there was one exception, and that is referred to at page 561. He says in the first full sentence on that page:

The real defect in the statement contained in the notice lies not so much in the comment that second-hand vehicles are covered by the Second‑Hand Motor Vehicles Act as in the assertion that “goods” do not include second‑hand motor vehicles.

And that is a statement included at the very end of the notice:
‘Goods’ include new motor vehicles, but not second‑hand ones, which are covered by the Second-hand Motor Vehicles Act –

He says:
To the extent that this suggests that the Consumer Transactions Act does not apply to second-hand motor vehicles it is incorrect.

Then, in the next paragraph:

With this possible exception the 13th Schedule notice is neither inaccurate nor misleading. Whether the last sentence in par. 2 is “misleading” . . . is a separate question. “Misleading” is a word which is capable of expressing various shades of meaning.

Then, about midway through that paragraph is the sentence that our learned friends rely upon:
The unexpressed assumption which underlies the prohibition is that the conduct so enjoined is not conduct in which the corporation is required to engage by, or under the compulsion of, some other law enacted in the interests of consumers.

But then his Honour goes on to say that:
It is not to be supposed that the very general language of s. 52(1), containing no reference at all to other statutory requirements, demands that other statutory protection given to consumers shall not be afforded. Indeed, the presence of s. 75(1), to which I shall refer in more detail subsequently, indicates that it was not intended to displace or qualify the protection given to consumers by State laws.

So, this was a construction of section 52. It is not to be read in a broad way so that it prohibits other forms of state‑based consumer protection. That would be very different from reading section 18 in a narrow way so that it does not apply when other forms of consumer protection do apply. That was not the circumstance in that, and the Court was not dealing with such a consideration.
If the sentence in question that our learned friends seize upon has any application to a circumstance operating in reverse, as it were, then we submit that it would be limited to situations where the content of the overall conduct alleged to be misleading and deceptive was proscribed in a fixed manner such that the alleged contravener had no possibility of choice or control over any aspect of its conduct. That is very far from the present case, we say, including for the reasons that we have been discussing since lunch.

GAGELER J: Is the Court of Appeal’s point in 115, that is, they did not have to sell at all?
MR MOORE:   Yes, and then I was going to say there is that ‑ ‑ ‑
GAGELER J: And then there is your point that they could have used different numbers on the label. They are the two points, are they?
MR MOORE:   Yes. Or that they could have ensured – important point: they could have ensured that the things they are selling conform to the label, which they did not do, and that would be the usual thing that one would do. As the Court of Appeal picked up, it is not just a question to sell or not to sell, the question is: do I sell something that actually matches the properties that I am stating on the label attached to it?
STEWARD J: But would that require testing of every car?
MR MOORE:   No. It would require quality control over manufacturing, so that you know you have the same properties.
STEWARD J: But you would still be ‑ ‑ ‑
GLEESON J: That would not ensure that result. That would just be a risk mitigation strategy.
MR MOORE:   In a sense, this is true of every representation made about the quality of products. We see representations all the time. Say – my TV example, saying it has 5 million pixels. You have to make sure that you are manufacturing – if you are going to say that, that your manufacturing produces a result of that. It is not, in any way, an unusual circumstance that you have to have quality control to make sure that statements made about the properties of vehicles or products are, in fact, met.
STEWARD J: But it does not follow from the situation of your client; that there was not quality control here. It is not like there has been a huge recall of this model because it does not meet the fuel consumption represented on the label.
MR MOORE:   We do submit that we know something has gone wrong.
STEWARD J: We know there was a finding that VCAT – that it was not defective. And it was taken back to the manufacturer, I think, twice to be checked out, or to the dealership, and they found nothing.
MR MOORE:   Yes, but Mr Begovic has a vehicle that when tested ‑ ‑ ‑
STEWARD J: I know. I once bought a new vehicle where strange things happened, and there was no explanation.
MR MOORE:   Yes, yes. But what we know is that ‑ ‑ ‑
STEWARD J: It was a French vehicle, let us make that clear.
MR MOORE:   On the facts as found by the Tribunal – and we are all dealing with – I mean, this is a case about a single car. It is a case about a single car caught in VCAT where some factual findings were made. What findings are going to be made in some other case with more expert evidence or other things, one does not know. But there was a series of factual finings made in VCAT about this particular vehicle – one single vehicle. The vehicle is here at the High Court today, it is parked outside.
It is a case about a car for an individual who had some findings made by VCAT that the fuel consumption on his vehicle tested in accordance with the same technology is just very far from it – from the results stated on the label. It cannot be said that that conduct was mandatory, for the reasons we have been exploring. There are various things that Mitsubishi could have done. Some of the questions being raised as to, well, is that really practical for Mitsubishi to do that, or would it be expensive for Mitsubishi to do that, that does not really answer the question that the vehicle had a representation made in respect of it that was false. When Mitsubishi says, no, section 18 does not apply because of GMAC, we say that GMAC just does not apply to this particular situation for the reasons I have explained.

There is a debate about whether the label conveys a representation about the vehicle in question, that was the debate that occupied some of the time this morning. We had understood, at one point, our learned friend to have agreed that the conduct in question would convey a representation about the vehicle being sold – being, that it had fuel economy tolerably close to that which was represented on the label – that was how my learned friend put it.

We say that concession was well made, it cannot be the case, we say, that the representation on the label – the label conveys no information about the vehicle being sold, or that consumers would understand it in that way. The Court of Appeal was correct to understand that it was making some statement about the properties of the vehicle being sold by reference to the type 1 test, and compliant with the fuel economy when produced by a test – in compliance with that test.

JAGOT J: I must say, I did not quite understand it that way. I thought it was far more confined, insofar as it related to the label itself, that all the label represented was that the vehicle is a vehicle of a type which was tested and achieved certain results, but if you took the label with other conduct, it might involve what you were saying, but that is certainly not the label in isolation on the vehicle sold.
MR MOORE: Yes, I want to address the question ‑ ‑ ‑
JAGOT J: I am just saying that I did not understand the submission that way from Mr Walker.
MR MOORE: I think my learned friend said something along those lines, but your Honour is right, he then put it a different way in answer to your Honours’ questions, and for that reason I want to address the point. Can we start with the label itself? The best copy, I think, is at page 41 of the core appeal book, in the judgment of his Honour Justice Ginnane. The label contains the prominent words fuel consumption, refers to the model, it then sets out the fuel consumption, and it says underneath that:
Vehicle tested in accordance with ADR 81/02.

That combination of matters, we say, would convey to a consumer that they were being told something about the fuel consumption of the vehicle that they were purchasing.
GORDON J: That was the point made by the Court of Appeal.
MR MOORE:   Correct, in paragraph 107, and correctly so, in our submission. Then appears the words:
“More information at had said at various points that that reference, in effect, is incorporated by reference. Can I go to the relevant passage of the Green Vehicle Guide, which is in the appellant’s book of further materials, which we were looking at previously for the testing results. The relevant page is page 93 of that book of further materials. There is a heading “Fuel consumption label”:
All new light vehicles sold in Australia are required to display a Fuel Consumption Label on the front windscreen . . . The label indicates the vehicle’s fuel consumption in litres of fuel per 100 kilometres . . . The results are based on a standard test procedure so consumers can reliably compare the performance of different models under the same test conditions.
The label is designed to help Australian motorists make informed choices about the environmental impact of their new car and the cost of running their vehicle.
Then, two sentences further on:
However, while the label enables you to compare vehicles with confidence, no single test can simulate all ‘real world’ driving conditions. Actual on‑road fuel consumption will depend on factors such as traffic conditions, vehicle condition and load, and how you drive.
Then, at the bottom of the page:
Since April 2009, an improved fuel consumption label has been required . . . displays three fuel consumption numbers –
And then some further information provided:
that urban fuel consumption values can be 20‑50% higher than the combined value. Whilst the ‘extra urban’ component is not a traditional ‘highway’ cycle, it is a high speed test that may provide a better indication of freeway or highway driving.
Then under the example label:
The figures displayed on the fuel consumption label are based on specific tests conducted by vehicle manufacturers to demonstrate a vehicle’s compliance with the Australian Design Rules (ADRs). All vehicles are tested under standardised, carefully controlled conditions in specialised vehicle emission laboratories.
Further down:
The test standard for the current fuel consumption label is specified in ADR 81/02 . . . The label displays the fuel consumption and carbon dioxide (CO₂) values for the vehicle obtained from a standard dynamometer test conducted under laboratory conditions. The test is specified in United National (UN) Regulations which set out the procedures for determining fuel consumption and CO₂ emissions from light vehicles.
Then there are details as to the test, it is a 20‑minute test divided into two parts, some further information about:
Most vehicle have much higher fuel consumption on the ‘urban’ part of the test –
and then a graphical representation of the test cycle that the vehicle has conducted, with time and speed, the urban and the extra urban cycle, which is a useful description of what is a very complex test as described in the regulations. So, that is the information the consumer will see if they go to the Green Vehicle Guide.
STEWARD J:   Are you going to take the Court to what is on page 86, under the heading:
I have bought one of the models listed in the guide, but I am not getting the same fuel consumption. Why?
MR MOORE:   Yes, your Honour. So that points out, consistently with the ‑ ‑ ‑
STEWARD J:   It says it is a laboratory test, and:
no laboratory test can simulate all possible combinations of conditions –
MR MOORE: That is right.
STEWARD J: It gives you some tips and explanations about why.
MR MOORE:   Yes. And I emphasise it was no part of our case to say that you could go and observe some real‑world conditions and then say, therefore the fuel economy is not as stated on the label. It was our case that you had to test the vehicle in accordance with the actual type 1 test with all of its strengths and weaknesses in order to see whether the information provided was accurate or inaccurate, which Mr Begovic did, by retaining an expert who had expertise in testing under the circumstances of the type 1 test, which the Tribunal accepted. Now, we say that the Court of Appeal was correct to observe at page 107 of the decision that:
an ordinary and reasonable consumer reading the label . . . would not consider the fuel consumption figures in the label to be confined to a test vehicle and irrelevant to the vehicle bearing the label. They would instead understand that the information was provided to them because it would bear on the cost of running the specific vehicle if they were to purchase it.
GORDON J:   That is the language that you have just taken us to.
MR MOORE:   Sorry, your Honour?
GORDON J:   It is the language from the Green Guide.
MR MOORE:   Yes:
The consumer can, for the reasons given, be taken to know that the vehicle itself has not been tested. But in circumstances where motor vehicles are known to be manufactured in makes, models and classes . . . and given the evident purpose of comparison by prospective purchasers . . . the information would be of limited utility if it did not apply to the actual vehicle offered for sale. Those circumstances mean that the ordinary and reasonable purchaser would take the label to be saying how the vehicle offered for sale would have performed under the standardised fuel consumption testing regime already conducted in respect of a representative vehicle of the same make, model and class. . . . There is no reason why the hypothetical purchaser would regard the label as asserting only that some, or most, vehicles of the same type would record approximately the figures in the label if subjected to standardised testing. The label contains no such disclaimer.

The observation of the next paragraph, although criticised by our learned friends, are also, in our respectful submission, sound:
It is true that the label makes it clear that actual results of real‑world driving will differ.

As it does:
This alerts the consumer to the danger of taking the figures too literally.

This appears to mean, in context, as taking the figures as meaning, this is the result you will actually get on the road:
But it also highlights the fact that the consumer will understand the label to be describing something about the actual vehicle. It may be noted that the reference in the label to ‘traffic conditions . . . does not suggest that anything inherent in the vehicle’s state at the time of manufacture might cause it not to perform according to the label if it were to be tested at the time of sale.

In other words, that it is a statement about the properties of the vehicle which is being sold. In our submission, those observations correctly describe what is represented by the label. In that sense, it is a relatively straightforward situation of a label making a statement about the properties of a vehicle which did not, in fact, have the properties on the label. In the ordinary case, that would – and was found here – to amount to misleading and deceptive conduct, and the court did not find that section 18 had no application because of the circumstance that Mitsubishi was compelled to make false statements about the vehicle being sold.
Can I provide some additional references on the topic we were discussing before lunch, being the conduct of the matter before the Tribunal. If the Court has the Tribunal decision, at page 8 of the core appeal book, it said in paragraph 10, the foot of the previous page:

The following matters are not in dispute: ‑
. . .
viIn July/August 2018 the parties agreed to jointly conduct testing on the vehicle, including the use of a Dyno meter, to determine the fuel consumption.

The vehicle was purchased the year prior, and so that was tested in 2018. Then, in the next paragraph:
viiOn 9 August 2019 the parties jointly undertook three test drives of the vehicle with Mr Begovic and various representatives of the manufacturer in attendance to determine Extra Urban fuel consumption.

At paragraph 16, on page 13, the Tribunal notes that Mr Miller’s evidence was that:
iiVipac was engaged to undertake a fuel consumption test on the vehicle. Vipac was not engaged to produce a NEDC report. The manufacturer is not saying that the Vipac report is a NEDC report –

NEDC is equivalent to type 1 test. Then, in paragraph 19:
The Vipac report dated 10 September 2018 was a five page report commissioned by the dealer. The report states that testing was conducted using the New European Drive Cycle at Vipac’s Melbourne laboratory on 6 September 2018.

And it produced certain results. Then, at paragraph 36, it is recorded that:
The representation, which is not in dispute, is that the vehicle’s fuel consumption as tested in accordance with ADR 81/02 was –

and then the results are set out. So, it appeared to be common ground at that point that a representation was made that the vehicle’s fuel consumption, tested in accordance with the type 1 test, was the value set out in the label. At 37, the submission is made by Mitsubishi that:
the label information was true.

The conclusion of the Tribunal, by contrast, in paragraph 52, was that:
The label information was false based on the expert evidence.

It was also observed that:
It misled Mr Begovic to believe the vehicle had certain fuel consumption characteristics it did not have. He relied upon the representation in the label in making his decision to purchase the vehicle.

So, all of that is speaking at the time of purchase and the matter proceeded in the Tribunal on the footing that all of the testing was relevant to that question. May it please the Court, unless there is anything else, those are the submissions for the respondent.
STEWARD J:   Just before you sit down – I am so sorry – can I ask one more question?
MR MOORE:   Yes, of course.
STEWARD J:   Would it have been possible for you to have also sued the Commonwealth?
MR MOORE:   I am not sure what the representation would be that is made by the Commonwealth.
STEWARD J:   It is their label; it is part of a Government scheme; they audited the figures. You may prefer not to answer.
MR MOORE:   I am just not sure, your Honour, that the Commonwealth was – I confess, I just have not given that any thought.
STEWARD J: That is fine.
MR MOORE: It would turn on some assessment of the extent to which the Commonwealth was involved in the making of the representation.
STEWARD J:   Yes, of course. I do not want to put you on the spot.
MR MOORE:   I think it is difficult to answer, because it would depend on that slightly nuanced assessment of their responsibility. Thank you.
STEWARD J:   Thank you.
GAGELER J: Thank you, Mr Moore. Mr Walker.
MR WALKER: May it please your Honours. There is no nuance in the role of the Commonwealth. It cannot be liable except according to its own legislation for its conduct of legislation, and legislation super in kind that would render the Commonwealth liable for its own legislative conduct is very difficult to imagine and probably does not exist.
In our submission, at the outset, the importance of the issues, obviously, for my clients, particularly for the first of them, as we hope appears from the way in which we have presented and argued the case, suggests an identification of the relation of the different contentions as follows. Of course, the course of idiosyncratic proceedings in the Tribunal is unavoidable. It is part of the history that makes this a concrete controversy within the Court’s jurisdiction, but we did not seek special leave complaining about the use of Ms Winkelmann’s evidence.

It is not a case which concerns, as it were, the one‑off, completely case‑specific matter of interest only to the instant parties concerning what could or might be inferred from her evidence. I am going to come back to it because I need to respond to some matters that have been put against us, but the point of importance to which the course of events in the Tribunal is, alas, pre‑history only, concerns the identification of a representation for what is the only surviving course of action, which is under section 18 – there had been much besides.

There was not, before the Tribunal, a case adumbrated in the same way as was successfully advanced in the Court of Appeal, being itself an adaptation, somewhat of a variation of the success that had been enjoyed before Justice Ginnane. The combination of the Tribunal as to some, and Justice Ginnane as to the rest disposed of all other claims of a kind that might be called statutory consumer protections, leaving only section 18. So, the first, logically, first question with section 18 would be, what is the conduct that is said to be misleading and deceptive? It is not a provision about representations, it is a provision about conduct, which notoriously can and often will include representations as the dominant feature of the course of conduct in question. I do not want to repeat what we have written and said in‑chief about much of those matters.

But it is of significance to appreciate that even before the Tribunal, the position was taken – I do not suggest that this has not wavered somewhat since – but the position was taken that the label correctly reported, perhaps more accurately, Mr Begovic was not in a position to prove otherwise, that it correctly reported the conduct of a proper test producing the figures displayed on the label.

You will see that on, for example, page 19 of the core appeal book. There is a repeated approach to this matter by the Tribunal in paragraphs 40 and 41, where the learned member of the Tribunal is, in her way of doing so, pointing out that Mr Begovic’s evidence concerning the inaccuracy of the label had to do with his disappointing experience post‑sale, plus also, later, Ms Winkelmann, but did not extend to saying the label was itself accurate or wrong. You see, for example, halfway down paragraph 42, that paragraph being concerned with what I might call an attempted falsification of something by reference to actual experience of fuel consumption over a period, which obviously was not conducted in a laboratory. And the Tribunal says that:

does not however mean that the information in the label was wrong. The label is not representing anything other than that, based on testing conducted in accordance with ADR 81/02, the fuel consumption figures are as stated in the label.

And then, in paragraph 43, the introduction of Ms Winkelmann’s evidence, using the language:
the label information is not true for the vehicle.

But it must be, in context, it is true for the test, but the test is not somehow true, perhaps applicable or whatever, for the vehicle. Now, that gave rise in due course to something which was, sequentially, by steps we have set out in writing, I do not need to go to now, the notion of a representativeness argument, which was raised in the courts below and rejected in the Court of Appeal as being available to Mr Begovic. That is, that the car tested was not representative of the group to which Mr Begovic’s car belonged, however you would define that group.
There is, of course, no notice of contention and, more fundamentally, there are no facts upon which any such case could ever have been run, and it would have been significantly factual, if not completely factual, thus suffering . . . . . To the extent that suggestions that this test is not true for this vehicle – the Tribunal’s language, or that it is inaccurate, misleading – my friend’s language – with respect to the respondent’s purchased vehicle, then that ought to be rejected in this Court as not available because it raised a point which is not fairly before this Court and, in particular, would involve a notice of contention saying the Court of Appeal was simply wrong in that regard.

GLEESON J:   I am sorry, is that not the finding that was made at 52?
MR WALKER:   I am sorry, your Honour?
GLEESON J:   Is that not the finding that was made at 52 of the Tribunal?
MR WALKER:   Yes, but what I am saying is – and then that has been rejected thereafter. Of course, your Honour is right, the Tribunal made a number of findings which have been overturned. If your Honour is referring to the identification of a representation in 52, that is not what I mean by representativeness. By representativeness, I mean that the test vehicle, whatever it was, fell short of what was required for it to be representative, and I shall show you the stipulations for the test. As your Honours would expect, it was that which has been common ground up to here, requires it to be representative, hence a reference to make/model type and type approval.
There can be no case suggesting that though the test was accurate for the vehicle before the vehicle which was tested is not representative so as to have produced the discrepancy that produces the respondent’s grievance. Paragraph 52, which commences with the bold proposition that requires to be teased out in order to be understood that the label information was false based on the expert evidence, is a reference to the assertions by Ms Winkelmann, given her testing two years and many thousands of kilometres later, concerning the state of affairs, of something being wrong.

Now, as I say, I do not – this is not a case in which we would involve the Court in the question of the inferences to be drawn from her evidence. Our point is that that was not a case at all about a representation of what would have occurred had the test been conducted on the respondent’s vehicle at the point of sale, which seems to be the only surviving representation against us after the Court of Appeal remodelled Justice Ginnane’s approach.

Because of the various representations that have been offered over the course of proceedings, a number of them were, as the Court of Appeal recorded, no longer to be entertained. For example, in their paragraph 18, at the book 117, the so‑called “test accuracy representation” which had never been really in dispute as to being conveyed was, as one sees from paragraphs 11 and 100 of the reasons, also not disputed as being correct, that is, not misleading.

Furthermore, as 19(b) points out, and relating to 18(b), the so‑called “actual fuel consumption representation” has, as the Court of Appeal said, “never really been in dispute” as one that was not conveyed. One could be forgiven for thinking that that obviously cut across the way Mr Begovic had run his case before the Tribunal, which started with his evidence about his actual fuel consumption, so things have moved on very considerably. What was left was this notion of 18(d), the testing replicability representation. I do not need to linger on 18(c) – the invidiousness of which is obvious – but 18(d), the replicability – about which I addressed in‑chief, I do not want to repeat myself – was what survived, and that is not what was before the Tribunal. I am not making a complaint about the case having been reshaped, those are disputes which have been had with success shared between the parties in that regard.

What I am pointing out is that what one does not find is a course of argument and decision which prevents us, to any degree, in presenting any of the arguments we have put about the nature of the representation. In particular, there is no limit from that course of forensic conduct on our relying on the proposition that the label is what was required by law, including the necessary proposition for that, that the test was conducted in accordance with the requirements of law, and the results were reported in accordance with the requirements of law, leading to the display of those values as required by law. This is part of my reply to the proposition that there is nothing in the GMAC point because we were never compelled to put in the notice something which was, and I paraphrase my friend’s argument, not true, or inaccurate, or misleading, for Mr Begovic’s vehicle.

Once one departs from the earlier and now unavailable modes of understanding the conduct, and in particular the exploded reasoning in the Tribunal, it is simply not true that this is a label that pertains to Mr Begovic’s vehicle except to the extent that his vehicle is within the group of a model type to which the label speaks. That says something, sure, but the label itself simply says that.

The label itself, as I say, is in this Court to be taken as being a label made in accordance with the law. That introduces the GMAC point, because how could it possibly be that a label is both in accordance with the law and is also unlawful. That is, misleading and deceptive within of the meaning of an applicable section 18, properly interpreted so as to produce that conclusion of misleading and deceptive. It is, in our submission, one of the trite impossibilities of the law for something to be simultaneously, within the same system of the law, lawful and unlawful.

We have a subset of that proposition which is even more powerful, though, logically, it does not alter the matter – at least rhetorically it does, because the conduct was not merely lawful, it was compulsory. I do not want to rehearse the issues in answer to paragraph 115 of the Court of Appeal in reply, but if we are correct to observe that in order to import and offer for sale and sell a vehicle to Mr Begovic it had to have a label, then it is compulsory conduct of a kind to which the High Court was referring in GMAC.

My learned friend – if I can take you to GMAC briefly, that is at 137 CLR 545. At 556 to 557 – the foot of 556 to 557, you will find the particular sentence of the notice to which my learned friend drew your attention:

‘Goods’ include new motor vehicles, but not second‑hand ones –

et cetera – found “incorrect,” at the top of 561, as my learned friend has showed you. The next paragraph, commencing “with this possible exception” is one which contains the reasoning upon which we rely because it is reasoning which shows that his Honour is not doubting the conclusion of incorrectness by the expression “with this possible exception,” rather he is flagging that incorrectness of statement and he raises the question, rather than answers the question, whether it is inaccurate or misleading within the meaning of section 52 of the Trade Practices Act – that being the separate question.
It may seem, at first sight, odd that an incorrect statement about consumer protection, in a consumer protection device such as a notice of this kind, would not, on account of being incorrect, be misleading. That paragraph in the middle of 561 answers why that, perhaps, superficial, intuitive response must be wrong because section 52 is to be taken in a context concerning trade practices and, in particular, the attempt to prevent or remedy unfair practices and, in that context, as his Honour says, that a “prohibition emerges as an important general prohibition.” Section 18, of course, is in pari materia with section 52 of the Trade Practices Act.

That is why the sentence in the reasoning that follows is at the heart of the argument and one which renders everything concerning what representations, if any, and were they falsified, if any, falls away in this case because, as your Honours appreciate, our main contention is: even if that which we stoutly resist – namely a representation which was misleading and deceptive being made by the notice or by the conduct of selling with the notice, even if, then it would not fall foul of section 18 because what we did was compelled in the sense that I have tried to explain.

Now, partly his Honour does that on a familiar statutory interpretation approach of asking how the interaction of a general and a specific provision, both extant in the statute book, will operate – familiar and not a matter to dwell on. But it is important that that passage in his Honour’s reason is introduced by this proposition. The unexpressed assumption which underlies the prohibition – that is section 52 – is that the conduct so enjoined is not conduct in which the corporation is required to engage by or under the compulsion of some other law enacted in the interests of consumers.

Or, to put it another way, that consumer protection may not be, according to the judgment from time to time of the legislature, or even different legislatures in the Federation – may not be achieved best by all‑embracing general propositions and may lend itself to some rather more pointillist approach, which is obviously what happened in this case. Now, it is for those reasons, in our submission, that this stands as a powerful illustration of the way in which provisions such as section 18 in our case and the MVSA provisions in our case are to be read with respect to the compulsory affixing of the label. In our submission, it is only by the untenable proposition that the contradiction be resolved by simply not engaging in trade or commerce that one can escape the logic of our case.

GLEESON J:   What if the requirement of the Commonwealth standard was thou shalt make a statement about the fuel consumption of the vehicle? In other words, it was something much less prescriptive.
MR WALKER:   Well, the response of the trade, one assumes, would be reflective of the common knowledge that you saw in the Green Guide, and it would start with, your experience of fuel consumption cannot be guaranteed. It may then say, however ‑ ‑ ‑
GLEESON J:   But what if the response of the industry was something that was plainly false?
MR WALKER:   Well, I would hope, with respect, that the particular content not being prescribed, then I would hope there would be a flurry of enthusiastic litigators to vindicate consumers’ rights, as there should be. So, if it were ‑ ‑ ‑

GLEESON J: Under misleading and deceptive conduct?
MR WALKER: Absolutely. And there may be others as well. There may be negligent, tortious misrepresentations as well. Your Honours, if the Parliament thought it necessary to require motor traders to say something, whatever, to say something about fuel consumption, then Parliament would have assiduously left to the skill, competence and conscience of the trader as to how he, she or it would supply the content. All Parliament would have said is you must speak on it. You may not remain silent. So, when asked about consumption you could not just spread your hands, But, on the other hand, you could say something along the lines of, look, experience teaches that I can tell you that standardised testing suggests that this Volkswagen is going to be much more economic than this Mitsubishi, but I am bound to tell you that is not my anecdotal report from customers, and all I can say is – et cetera, et cetera. Pretty much what the Green Guide was saying, frankly.
What the Green Guide shows – I do not need to take you to it, but, in reply to our learned friend, what it shows is the correctness of the proposition that if there is utility in these labels at all it is because it enables you – at a glance, frankly – to compare it to exactly the same bold numbers on some other model – it may be from the same manufacturer, it may be from a rival manufacturer – on some other model or type, to enable you to understand not as a prediction of actual experience on road but as a comparison like‑for‑like the same vehicles – sorry, the same test for different vehicles – whether there is a difference which happens to be conveyed by this conventional quantitation. A conventional quantitation that did not pretend to be of actual road conditions as the following words in the subscript rubric make it crystal clear.

It is for those reasons, in our submission, that one comes back to an argument put by my learned friend this afternoon with, in our submission, a rhetorical question. Where is the choice in this regime given to Mitsubishi or to the dealer, in keeping the label in place and selling, to do other than supply the label, which, we submit, is in binding and closed fashion to be regarded as correct, that is, lawful and accurate in compliance with the standard to which my learned friend paid so much attention? What discretion would there be?

GLEESON J: Do you still rely on the principle that what is permitted is authorised?
MR WALKER:   I am sorry, your Honour?
GLEESON J: I think I saw that in your written submissions.
MR WALKER:   I think, insofar as that is a principle, the answer is, yes. If the law – why I hesitate is that some permission is my silence on the healthy basis that what is not forbidden is permitted, and that does not take me very far. In this case ‑ ‑ ‑
GLEESON J: It might be what is empowered is authorised.
MR WALKER:   In this case we are positively obliged – if we are going to import and then sell, we are positively obliged to have this label. Furthermore, in this case, on the facts, we were positively obliged to have the label in the form it took. All of that is clear and really not to be ‑ ‑ ‑
GAGELER J: Including the numbers, you say?
MR WALKER:   Absolutely including the numbers, because it is common ground – until my learned friend perhaps retreated from this – it is common ground, see 11 and 100 in particular in the Court of Appeal, and 107 for that matter, that the label conveyed values numerically which accurately, faithfully, lawfully, reported the test results. It was compulsory to do that, we had no choice except for this spurious notion of everyone has a choice whether to be a traitor or not.
When one actually goes to the testing regime provisions, a deal of which your Honours were taken. Another rhetorical question is where would your Honours find in any of that a notion solemnly promulgated after multi‑party United Nations conferences, and then translated into various language and transmogrified into municipal regimes such as Australia, this idea of a one‑by‑one, that is, a single vehicle, unique, homologation.

Homologation is not for unique vehicles. That is the whole point. It is designed to take advantage of mass production, quality control, standardising, and some international understanding between manufacturing companies and countries and importing countries as to bringing some order into a decent commerce concerning such items. That includes these excessively complicated protocols for the conduct of standardised tests, which will avoid – obviously – the problem of differences between driving a car in the tropics and driving a car in the Arctic.

When one looks at the provisions to which your attention was drawn, you just will not find this idea of a one‑off test. It is a mythical notion that there was a choice just to do a test for Mr Begovic’s car, and that the availability of that choice means that there is not the compulsion that we enlist for our GMAC argument. For example, in the appendix, if you go in the volume of authorities to 222 to 223 in the hardcopy, in the section, “application for approval”. This is part of the standard. You will find there the requirement by which the standard given force by the Act, there can be approval for the import and selling of vehicles. You will see under 3.3, a reference – as you might expect – to a “vehicle, representative of the vehicle type to be approved”, et cetera.

The reference to M₁ and N₁ vehicles is not some conjuring of the Anglican catechism, it is rather a passenger and goods – you can take it. In that hard copy, your Honours, I am not sure what numbering to use – page 8? I am not sure. I am sorry, your Honour.

GAGELER J: I think I found it, thank you.
MR WALKER: You will see there is a reference for M₁ and N₁ vehicles – we are in the N category, being a utility:
type‑approved with respect to their emissions –

et cetera. You see, that is language which contemplates that naturally enough, there is a test procedure to achieve type approval so that there can be approval for importation and sale of motor cars sufficiently identifiable by reference to their similarity of specification and manufacture. In our submission, the notion that there is contemplated by the Act and the standard some free‑flowing choice simply to approve one‑by‑one is absurd and was regarded as such by the Court of Appeal and rejected as being an available reading of the obligation of law, and cannot – in our submission – be revived in this Court.
If your Honours go back within the standard – I will try and get the right page – I am sorry, in my version hard copy it is 203, it is clause 9.1 of the regulation, page 15 of hard copy print I think of the ADR, the Australian Design Rules, and under the heading “Conformity of Production” you will see 9.1:

Vehicles approved to this Regulation shall be so manufactured as to conform to the type approved vehicle.

So, this is all about type of rule, as you might expect. Now, that is why, subject to provisions with which we have not concerned the Court about – stipulated running in intervals – as my friend noted, perhaps as a matter of general knowledge, a car is not quite the same in its first few weeks of life as it might be after three months of appropriate handling – the test vehicles have to have, or may have, depending upon provisions the application of which do not matter in this case, a certain number of kilometres running in for the testing purposes. But subject only to that, which does not really entrench upon the point, there has to be testing before approval, and there has to be approval ‑ ‑ ‑
GORDON J:   There needs to be two, does there not?
MR WALKER:   I am sorry, your Honour?
GORDON J:   There needs to be two with what you just took us to. So, there is testing before approval and then what 9 tells is that you, as Mitsubishi, have to manufacture them so they conform to those figures.
MR WALKER:   Yes. So, you have your type approval ‑ ‑ ‑
GORDON J:   And then you have to verify that they are complying with the appropriate production checks ‑ ‑ ‑
MR WALKER:   Yes. Yes, exactly.
GORDON J: ‑ ‑ ‑ and you have to then – which seems to suggest that that meant something about the particular vehicle, which I think is the point you are making – and then they are audited.
MR WALKER:   Yes, that is right, and my point is this. Type approval starts with an approval which requires test reports. It is obviously of what I will call a new vehicle, that is, a new vehicle run in, tested, whatever, because its testing and the reporting of its values must precede the commercial activities importing and selling. This, with respect, is obvious from the whole notion of requiring approval before you import and sell, and it is for those reasons, obviously enough, that we resisted – it turned out ultimately with a degree of success in the tribunals below – the notion that the reported values required by us to be put on the label contained by way of representation of a future matter or prediction of future performance or a hostage to fortune prediction as to future human conduct of the driver, for example, anything concerning actual performance thereafter.
It is for those reasons that we were left simply with the replicability as at point of sale, which was the final and surviving representation upon which our section 18 liability hung, for the reasons we have tried to put. There are not arguments against us which convincingly show that replicability at point of sale represents anything which is, to the slightest degree, practical. In other words, there are other ways in which the real‑life meaningful use that might be made by a consumer of this information may be more or less disappointed by experience without any recourse against us.

We are bound to report the test; the provisions require that a type approval then be met, so to speak, or fulfilled by manufacturer thereafter in conformity; there are audit provisions before and after, and none of it gives us a choice at all. In particular, we do not have a choice – so long as that label is there, we do not have a choice to alter the manufacturing specifications of the vehicle, as appeared to be one of the arguments against us this afternoon.

It is not a matter of, to quote, making sure that every vehicle complied, we are bound to make sure that they conform to the type or model referred to in the label. Thereafter, if that type or label conveys numbers which are unrealistic because they were laboratory, for example, so be it. That is what Parliament required; no doubt, as the Green Guide suggests, did so because at least that gives a neat, tidy, standardised way of understanding a difference between rival models. But not, in our submission, in any way, decides to provide a prediction, let alone an assurance by way of warranty of fuel consumption, much as the Green Guide warned and the label itself spelled out.

Now, my learned friend correctly points out that the Court of Appeal must be right, that something is conveyed concerning the particular car on the showroom floor being evaluated for possible purchase by the consumer by the affixing of that label. I do not want to repeat what I have already said – is the extent of what is said. I do not know whether I have misspoken or maybe I have put variations, but let me try and dispel doubts of a kind that my learned friend raised with Justice Jagot.

Of course, it will be in the context of such a label being on a mass‑produced item as it happens, as we know, subject to obligations of conforming manufacture after a type approval. Of course, it will be in the nature of things that there will be some tolerable similarity understood. That is, after all, why we use such descriptions as model or makes and types. But once it is accepted, as it ought to be, that it certainly does not say anything about actual life experience of any particular owner of a vehicle, and it does not say anything about variability or ranges – it is just a point figure – then one understands the force of the warnings or explanations in the Green Guide that this one figure is to enable you to compare with the one figure provided in a similarly artificial way for a possibly competing product in the market.

Naturally enough, one can easily posit other trading conduct which, by reference to the label, will undoubtedly be misleading and deceptive. One might imagine someone who takes the course of seeking to enlist the reliance by some consumers on government information, or official information, and who might misleadingly – and, as it happens contrary to the Green Guide, and, indeed, contrary to that which is conveyed in the subscript rubric on the notice itself – they might actually say to somebody, well, you can see how good this fuel consumption is going to be for you. And what are you driving at the moment? You will get much better consumption and you will save $200 a week, or whatever. All of that, no doubt, would be grist to the mill for a misleading and deceptive conduct case in the event that somebody could be found who would actually believe such guff and rely on it.

It is for those reasons that, of course, we accept that this label might, in combination with other circumstances, add up to a misleading and deceptive case, to which there would be no GMAC answer. Of course, because no one is compelled to utter falsehoods about what is conveyed by such a notice. It would be misleading and deceptive precisely because the notice does not predict any such actual experience, as has been concluded with respect to the decisions on what representations have and have not been conveyed.

A small point of detail. It may be that in the Tribunal, the representation – if there be any representation identified for section 18 purposes – is to be found in the last paragraph of the Tribunal members’ paragraph 50, which I think you will find on page 20 of the book:

The label represented that it was more fuel efficient than the 2008 model.

And you know from the record that that was Mr Begovic’s everyday – that is, ordinary life – concern about the disappointment that he had suffered. And 52, although it also contains language concerning what was conveyed by the label, it does not, we think, go further in explaining what the representation was. Paragraph 52 seems to support our reading of the last sentence of 50 as being the representation the Tribunal had in mind; that is, it continues this notion that it had:
better fuel consumption than his 2008 vehicle.

All of that is now, as I say, pre‑history to the issues that are before this Court. But there was, in the ground of appeal from the Tribunal – which you will find in page 26 of the book, at paragraphs 5 and 6 of that – in that rather differently‑framed contest, a challenge to the proposition that 2019 testing could be used to falsify that representation. Now, I just draw that to attention because Justice Gageler raised a question about what was not the subject of the ground of appeal. I will make it clear: we did not seek special leave for; this case is not concerned with the question of what do you do with Ms Winkelmann’s evidence, but as a matter of history it was, before Justice Ginnane, a question raised to that extent. The same, it can be seen on page 27 in paragraph 18.
Could I complete references to the way in which the lawfulness – that is, the accuracy of the label according to the standard – was either found or agreed in the courts below, and is simply not open now to be attacked. Before Justice Ginnane, paragraphs 77 and 38, in particular, the last of those:

Mr Begovic did not contend that the test results referred to on the label were wrong or falsified –

Leaving only, we assume, some latter-day version of the representativeness complaint which the Court of Appeal has rejected. As you would see in the Court of Appeal, where their Honours noted the course in the tribunals below in their paragraph 35(a):
the test accuracy representation (which was not misleading or deceptive) –

Then, as to Justice Ginnane, the Court of Appeal noted in paragraph 49 that he, too:
appeared to accept that the label conveyed the test accuracy representation, and that that was not misleading or deceptive.

Then, in their Honours paragraphs 97, 98, to which your attention has already been drawn a number of times, the quashing of the attempt to go back on those matters with respect to the test accuracy representation. With respect to a comment made by our learned friend concerning the content of the label not being prescribed or not being mandatory we, of course – as you know – say, of course it is compelled by what might be called the familiar manner of prescribing a mandatory process, algorithmic in nature, which will then produce a figure. That is compulsion.
The actual numerals do not have to appear in order for it to be compulsory to display the numerals corresponding to the test results achieved and reported compulsorily. In fact, unless we have misunderstood that argument, it would appear to be something that is simply not before this Court. It would require a notice of contention. The Court of Appeal made it clear in their paragraphs 2 and 3 – and if I may say so, it is there because it was really common ground – that the form was, in all its respects, particularly including the numerals it had, in accordance with that which was prescribed; that is, compelled.

GORDON J: They went on to consider that argument.
MR WALKER:   Yes. I am sorry ‑ ‑ ‑
GORDON J: The Court of Appeal went on to consider that argument, the mandatory nature of the ‑ ‑ ‑
MR WALKER:   And found that it was mandatory, but that selling was not.
GORDON J:   Yes.
MR WALKER:   Yes. May it please the Court.
GAGELER J: Thank you, Mr Walker. The Court will consider its decision in this matter and will adjourn until 9.30 am tomorrow for the pronouncement of orders, and otherwise until 10.00 am tomorrow.
AT 4.03 PM THE MATTER WAS ADJOURNED

[2023] HCATrans 97

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