QE Family Pty Ltd v Peter Warren Automotive trading as Mercedes-Benz Macarthur
[2024] FedCFamC2G 172
•28 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
QE Family Pty Ltd v Peter Warren Automotive trading as Mercedes-Benz Macarthur [2024] FedCFamC2G 172
File number(s): CAG 39 of 2022 Judgment of: JUDGE W J NEVILLE Date of judgment: 28 February 2024 Catchwords: CONSUMER PROTECTION – claim of lack of merchantable quality in vehicle – Applicant refused to make vehicle available for inspection and preparation of independent expert report – Respondent’s mechanics unable to replicate faults claimed by the Applicant – auto electrician relied upon by Applicant as “expert” but failure to comply with Practice Note and multiple authorities regarding “expert evidence and witness” – oral evidence permitted of this “expert in a voir dire – this expert did not assist Applicant’s case and in a number of respects undercut it – Applicant bore onus of establishing lack of merchantable quality under s.54 Australian Consumer Law (ACL) – onus not discharged – Application dismissed with costs. Legislation: Competition and Consumer Act 2010 (Cth), Schedule 2, The Australian Consumer Law (ACL) s.54
Evidence Act 1995 (Cth) s.76, 78, 79, 135, 189
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2001 (Cth), r.1.07, 9.04
Cases cited: Australian Competition and Consumer Commission v LG Electronics Australia Pty Ltd (2018) FCAFC 96.
Australian Competition and Consumer Commission v Mazda Australia Pty Ltd (2021) 158 ACSR 31
Brown v Commissioner of Taxation (2002) 119 FCR 269
Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (2007) 159 FCR 397
Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588
HG v The Queen (1999) 197 CLR 414
Honeysett v The Queen (2014) 253 CLR 122
La Trobe Capital & Mortgage Corp Ltd v Hay Property Consultants Pty Ltd (2011) 190 FCR 299
Lithgow City Council v Jackson (2011) 244 CLR 352
Merck Sharp & Dohme (Australia) Pty Ltd v Peterson (2011) 196 FCR 145
Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427
QE Family Pty Ltd v Peter Warren Trading as Mercedes-Benz Macarthur [2023] FedFamC2F 875
Re Guide Dog Owners’ & Friends Association Inc v Guide Dog Association of New South Wales & ACT (1998) 154 ALR 527
Smits v Roach (2006) 227 CLR 423
Stradford (a pseudonym) v Judge Vasta [2023] FCA 1020
Vakauta v Kelly (1989) 167 CLR 568
Vautin v BY Winddown Inc (No.4) (2018) 362 ALR 702
S. Odgers, Uniform Evidence Law (Eighteenth Edition), (Sydney: Lawbook Company, 2023)
Division: Division 2 General Federal Law Number of paragraphs: 122 Date of last submission/s: 17 January 2024 Date of hearing: 30 October 2023 Place: Canberra Applicant: Applicant appeared in person Counsel for the Respondent: Ms K Weir Solicitor for the Respondent: Hunt & Hunt Lawyers ORDERS
CAG 39 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: QE FAMILY PTY LTD
Applicant
AND: PETER WARREN AUTOMOTIVE TRADING AS MERCEDES-BENZ MACARTHUR
Respondent
ORDER MADE BY:
JUDGE W J NEVILLE
DATE OF ORDER:
28 FEBRUARY 2024
ON A FINAL BASIS, THE COURT ORDERS THAT:
1.The Application filed by the Applicant on 7th April 2022 in the Federal Court of Australia and transferred to this Court pursuant to s 32AB of the Federal Court of Australia Act 1976 (Cth) on 6th December 2022, be dismissed.
2.The Applicant is to pay the Respondent’s costs as agreed or as taxed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE W J NEVILLE
Introduction
According to the Applicant’s Statement of Claim, originally filed in the Federal Court of Australia on 7th April 2022 and amended on 2nd August 2022, he ordered a new Mercedes-Benz vehicle (“the vehicle”) on 10th September 2018, and took delivery of it on 27th February 2019.[1] Paragraph 1 of the Statement of Claim stated: “The defect involving driver safety systems first surfaced on the 27 February 2019. Mercedes-Benz has failed to rectify the defects over a number [sic] to opportunities [sic] since delivery.”
[1] Although attached to various Affidavits filed in the proceeding, the Service Tax Invoice from Mercedes-Benz, dated 6th October 2022, which record its findings regarding alleged faults in relation to the vehicle, became Exhibit MB1. A copy of the Purchase Order/Contract for the purchase of a new vehicle, dated 10th September 2018, is Annexure MQ1 to the Applicant’s Affidavit, filed 18th August 2022. A Service Tax Invoice from the Respondent to the Applicant, dated 7th April 2022, is Annexure MQ2 to the same Affidavit. This Invoice noted 7 items of “Customer Concern” for attention. Some of these items were noted as confirmed and as being fixed or requiring attention, while others stated that there were no issues found that required attention.
The matter was transferred to this Court on 6th December 2022.
From start to finish, the matter was beset with procedural and consequential evidentiary difficulties. Indeed, notwithstanding that the Applicant appears to be a regular litigator (based on a quick perusal of the Federal Court lists of judgments, and other Courts – simply a statement of fact, not a criticism of course), the conduct of the trial, as well as the semi-regular attempted Directions hearings, bordered on the shambolic. The Applicant regularly simply refused (or was unable) either to comply with Court Orders (such as those relating to securing a single expert), or to follow basic directions regarding the conduct of the trial and the filing of documents. In addition to not complying with Orders and directions, the Applicant simply made the conduct of his own case ever so much more difficult than it should have been.[2] Every attempt by the Court to assist him was either directly rebuffed or simply ignored. Without going through all of the difficulties encountered, the more germane of them can be summarised as follows.
[2] The failure to comply with Court Orders, of itself, can be the basis for dismissing a proceeding. See Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) 13.04(1)(a) and 13.05 (1)(a) and (c) (“the GFL Rules”).
First, in cases such as the present kind, where there is a significant dispute regarding facts (e.g. were there defects of one kind or another, if so, what kind, and the volume of them), it is common-place for there to be an independent expert, who provides a report precisely on such matters. Here, there were multiple attempts to obtain agreement between the parties for the appointment of a single expert. The Applicant steadfastly refused to agree to there being a single expert.[3] On another occasion, the Court suggested that the Respondent nominate three experts and the Applicant choose from that list. He refused. On a third occasion, upon the Court suggesting that a designated officer from the local NRMA office nominate a small panel of experts, again the Applicant disagreed and refused to abide by any report from such expert.[4] Steadfastly, the Applicant refused to make the vehicle available for inspection. The adverse consequences for all, including the Applicant, are discussed later in these reasons.
[3] The extensive correspondence between the parties, and the unsuccessful attempts by the Respondent to obtain the Applicant’s agreement regarding a single expert to inspect and prepare a report, is annexed to the Affidavit of J. Tass, filed 5th September 2023, which was used in other interlocutory Applications, for example, to seek security for costs from the Applicant.
[4] Various Orders were made regarding the appointment of a single expert on 27th March 2023, 20th April 2023, 13th June 2023, and 3rd July 2023. As noted in these reasons, ultimately the Respondent was unable to file its own “expert Report” because the Applicant refused to make the vehicle available for inspection.
The Applicant regularly commented that the Respondent had already done an inspection and that he would rely upon that document. Otherwise, as noted, the Applicant refused to make the vehicle available for inspection. This opposition was notwithstanding that the Respondent pointed out to him in correspondence (annexed to the Affidavit of Mr Tass) that the much earlier inspection by the Respondent (a) was done for the purposes of mediation and (b) did not constitute an expert report. All of these explanations, and those regarding experts and their reports, fell on deaf ears. Despite multiple attempts to explain that the inspection by Mercedes-Benz was not an independent report, the Applicant maintained his position until just before the trial commenced. Then he suddenly (and otherwise without notice) declared his reliance upon (i) a single page “Tax Invoice”, dated 6th April 2023 from Expert Auto Electrics (prepared by a Mr Kiernan; Mr Kiernan also provided a Vehicle System Report. Both of these documents became Exhibit A1), and (ii) a Tax Invoice, dated 19th October 2020, from Anthony Costello Automotive (this document became Exhibit A2). Although both Reports became Exhibits, neither of these Reports were in proper form; neither of them complied with the requirements for Expert Reports as prescribed under the Federal Court of Australia’s Expert Evidence Practice Note (which had been provided to the Applicant); neither of them satisfied the statements of principle outlined by the High Court in cases discussed below; and neither of them even stated on the face of each document that it was, or was ever intended to be, an “expert report”. No Affidavit was filed by either of the persons who prepared these “Reports”. Mr Kiernan, the author of the document styled “Tax Invoice”, was permitted to give oral evidence in a voir dire. This is discussed below.
Secondly, there were ongoing issues regarding who was the proper Applicant/Plaintiff: was it Dr Quach or was it his family company? Subject to the answer to that issue, further questions arose regarding the legal representation of the family company in accordance with the Rules. Much time and energy were rather needlessly expended on these matters, which should have been addressed directly and expeditiously much earlier in the proceeding. Unfortunately, they were not. They, too, are canvassed (and resolved) briefly below.
More relevantly, however, was the Respondent’s Application by which it sought payment from the Applicant for a sum for security for costs. This Application was heard on 7th September 2023; judgment was delivered in the Respondent’s favour on 28th September 2023. The Orders that were made on that occasion required that security for costs in the sum of $35,000 be paid by the Applicant by 12th October 2023, as well as an Order for costs in the Respondent’s favour.[5] In the result, that security was paid in accordance with the Orders of the Court. There was no appeal in relation to the Court’s decision regarding this matter. However, that judgment gave rise to the third area of procedural difficulty.
[5] See QE Family Pty Ltd v Peter Warren Trading as Mercedes-Benz Macarthur [2023] FedFamC2F 875.
In the course of the Applicant’s written submissions following the final hearing, he submitted (details are set out below) that because of the Court’s decision on the security for costs issue, I was relevantly biased against the Applicant and, therefore, I should recuse myself from determining the substantive matter.[6] The relevant, single submission was in the following terms:
I rely on the Wigney J ruling in Stradford (a pseudonym) v Judge Vasta [2023] FCA 1020 to ask for Neville J to recuse yourself. Neville J has prejudged the substantive matter and improperly used evidence of the respondent’s inspection of the vehicle (service report dated 6 October 2022) in a personal attack on me, as reasons for an order for security for costs.
[6] See his second set of final submissions, filed 11th December 2023, par.1. These were filed without any leave sought, or granted, by the Court. They replicated the earlier-filed submissions of 21st November 2023. The only additional paragraph was a new par.1.
Respectfully, the contention here was untenable and should not have been made. This is so because (a) the Applicant did not appeal the security for costs judgment, and (b) that judgment dealt solely and specifically with a discrete Application for security for costs. There were no “findings”, let alone comments (one way or the other), regarding any of the protagonists involved in the litigation other than to highlight a range of procedural issues. Such are standard fare in judgments of all Courts. During the hearing, the Applicant raised recusal briefly but when it was not formally argued he simply pressed on with the trial.[7] Further still, even in his improperly filed (without leave) extra final submissions, after raising the recusal, he nonetheless made submissions on the substantive issues and sought to have the presently constituted Court determine them. In such circumstances, there is no basis for the Applicant to make such a claim of bias, of any kind. Moreover, his citation of the decision of Wigney J in Stradford (a pseudonym) v Judge Vasta is inapt in every respect, not least because he did not even attempt to articulate how that decision was (or is) relevant in the current matter.[8] Further, he does not address, let alone refer to, any of the basic or standard principles regarding recusal/bias.[9] To the degree that it is raised, I reject it for the reasons given, including (among other things) the Applicant having waived any such claim because he has continued to seek to have the Court determine the substantive issues.[10]
[7] See T 7 and 8.
[8] Stradford (a pseudonym) v Judge Vasta [2023] FCA 1020.
[9] See the now long-standing tests for apprehended bias set out by the High Court in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, and Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427.
[10] On “waiver” generally, and the requirement that any application for recusal on the basis of bias of any kind be made promptly, see Vakauta v Kelly (1989) 167 CLR 568 at 572 (Brennan, Deane & Gaudron JJ) & 579 (Dawson J); Smits v Roach (2006) 227 CLR 423 at 439-442 (Gleeson CJ, Heydon & Bell JJ) & 465-466; Michael Wilson & Partners v Nicholls (2011) 244 CLR 427 at 449 (Gummow ACJ, Hayne, Crennan and Bell JJ).
Finally, albeit in general terms, the factual and legal issues are of relatively narrow compass. They were helpfully expressed in four basic questions set out in the Respondent’s Case Outline, filed 24th October 2023 (two factual issues; two legal issues). Indeed, these relatively straight-forward questions can and should be narrowed to only two, highlighted further below. The final hearing addressed, as best it could, these four basic questions, which were as follows:
(a)Whether the Applicant is the proper Applicant in the proceeding?
(b)Whether the Vehicle is (or is not) of an acceptable quality due to alleged defects?
(c)Whether the Applicant has authority to pursue the litigation or represent the Applicant family company? And
(d)Whether the Applicant has discharged his (or its) onus of proof in relation to its claim(s)? This question/issue is heavily dependent upon matters of principle regarding “expert evidence”, which were only addressed directly by the Respondent.[11]
[11] There are related issues of “weight” of the evidence before the Court, as well as issues of procedural fairness, discussed later in these reasons.
Questions/issues (a) and (c) are, of course related. Briefly, they arise this way as described in the interlocutory judgment already referred to, dated 28th September 2023. In [10] – [16], I noted the following:
[10] The Originating Application, filed 7th April 2022, named the Applicant as “QE Family Pty Ltd.” The Amended Originating Application, filed 1st August 2022, named the same Applicant. An Amended Statement of Claim was filed on 1st August 2022, in which the Applicant/Plaintiff was again identified as “QE Family Pty Ltd.” Paragraph 1 of that Amended Statement of Claim stated:
The plaintiff ordered a new vehicle (with options) from Mercedes-Benz Macarthur on 10 September 2018 …
[11] On a number of occasions, the Respondent has sought to have the Applicant define or declare its position so as to ensure that the correct party conducts the proceedings – with or without legal representation. This is especially so since, as is common in most if not all courts, any litigation conducted by a corporate entity requires that the corporation be legally represented.[12] I need not detail the inquiries by the Respondent in this regard.
[12] To compound the opaque nature of the identity of the relevant “Applicant”, I note that (a) the contract for the purchase of the Mercedes-Benz vehicle, dated 10th September 2018, lists “Mr Michael Quach” as the “Customer Name”; (b) while various Service Tax Invoices (e.g. dated 4th April 2022, and 28th September 2022) list the Customer Name as “QE Family Pty Ltd.” To state the obvious: all such details are a matter for, and in the control of, the Applicant, however described.
[13] Indeed, in an Affidavit, filed 5th September 2022, at par.7, Dr Quach deposed: “Before Anthony [the salesperson] travelled to Canberra, I asked him to register the vehicle in my trust name, QE Family Pty Ltd.”
[14] During the course of the hearing on 7th September 2023 regarding security for costs, the Applicant filed in Court a further Affidavit. That Affidavit, deposed by Dr Quach, among other things, stated that (a) he opposed the Application for security for costs, (b) as a director of the QE Family Pty Ltd he had given himself authority to represent that company, (c) as a director of QE Family Pty Ltd he had “absolute entitlement” to the “asset” known as the Mercedes-Benz vehicle, (d) according to some law, described as “the law of absolute entitlement”, this recognised him as the owner of the vehicle (he also deposed that he was the beneficiary who was “absolutely entitled” to the assets of QE Family Pty Ltd, (e) his Wife was appointed a director of that company on 7th March 2023, and his Wife now has “absolute entitlement” to the asset of the said vehicle, and (f) the Applicant has [now] received authority from his Wife to “legally represent” her and the company in the proceeding.
[15] The final paragraph of this Affidavit (par.9) contained submissions regarding security for costs. These were to the effect that because the QE Family Pty Ltd holds certain assets (on trust for another named company), namely the motor vehicle itself together with a property in Homebush West in Sydney, in his submission, the Application for security for costs was “mooted” [sic].
[16] For completeness, I should note that, whatever and whenever there was any relevant “authority” provided by one or other of the “sole directors” of QE Family Pty Ltd, that entity remains formally listed as the Applicant in this litigation. There has been no formal Application to change the name of the Applicant in this Court.
[12] See Rule 9.04 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2001 (Cth).
At the commencement of the final hearing, the Applicant provided further documentation, this time signed by his Wife, attesting to Dr Quach being authorised to act on behalf of the family company. This documentation did not address the requirements of Rule 9.04 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2001 (Cth), which require a corporation to be legally represented, subject to (among other things) leave of the Court being granted.
Rule 1.07 of the Rules just referred to is in the following terms:
(1) The Court may in the interests of justice dispense with compliance, or full compliance, with any of these Rules at any time.
(2) If, in a proceeding, the Court gives a direction or makes an order that is inconsistent with any of these Rules, the direction or order of the Court prevails in that proceeding.
On the Court’s own motion, in the interests of justice in accordance with r.1.07, the Court dispenses with the requirements of the Rules regarding a corporation being legally represented in the circumstances of the current matter where Dr Quach clearly uses, from time to time, his family company as an agent for his business affairs and other related interests. Without stating this in these terms, perhaps partly out of exasperation, the Respondent’s submissions seem also to acknowledge this reality, which I also take to be further support for the Court’s procedural course.
For similar reasons and using the same Rule, again on the Court’s own motion, in relation to any of the multiple and ongoing difficulties regarding who is the proper Applicant/Plaintiff, I shall treat Dr Quach and his family company, QE Family Pty Ltd, as interchangeable entities. It follows that they shall be treated as joint Applicants in the proceeding to the degree that there is any issue regarding who is the proper Applicant/Plaintiff.
These two procedural rulings effectively determine the issues comprehended by Questions (a) and (c) set out above.
For the reasons that follow, the substantive matters comprehended by Questions (b) and (d) set out in [10] above (with some slight variations or additions noted below), must be determined adversely to the Applicant. Accordingly, the Applicant’s Statement of Claim, originally filed in the Federal Court of Australia on 7th April 2022 and amended on 2nd August 2022 (and any and all related Applications) must be dismissed. Costs must follow the event, with the Applicant to pay the Respondent’s costs, either as agreed or taxed.
Applicant’s Orders Sought
The Applicant’s Final Orders sought were contained in his Amended Originating application filed in the Federal Court of Australia on 2nd August 2022, prior to it being transferred to this Court. They were as follows;
1.Pursuant to the warranty provisions, Section 54 of the Australian Consumer Law, under the Competition and Consumer Act 2010 (Cth), a new V-class (as specified with options on the purchase order dated 10 September 2018) be formally requested by Peter Warren Automotive Pty Ltd trading as Mercedes-Benz Macarthur to replace the defective vehicle WDF44781323550055, delivered on 27 February 2019.
2.Costs
3.Interests
4.Compensatory damages
Respondent’s Orders Sought
The Respondent’s Orders sought were contained in a ‘Response – No New Orders Sought’ filed 17th April 2023. Within this document, the Respondent simply opposed all of the Orders sought by the Applicant in his Amended Originating Application dated 1st August 2022 (filed 2nd August 2022).
Relevant Statutory Provisions
The Applicant’s claim is that the vehicle in question, as provided by the Respondent, was not of “acceptable quality”, as defined in s.54(2) of the Australian Consumer Law (“ACL”), being Schedule 2 to the Competition and Consumer Act 2010 (Cth). Section 54 provides as follows:
(1)Guarantee that goods are of acceptable quality
If:
(a) a person supplies, in trade or commerce, goods to a consumer; and
(b) the supply does not occur by way of sale by auction;
there is a guarantee that the goods are of acceptable quality.
(2)Definition: acceptable quality
Goods are of acceptable quality if they are as:
(a)fit for all the purposes for which goods of that kind are commonly supplied; and
(b) acceptable in appearance and finish; and
(c) free from defects; and
(d) safe; and
(e) durable;
as a reasonable consumer fully acquainted with the state and condition of the goods (including any hidden defects of the goods), would regard as acceptable having regard to the matters in subsection (3).
(3)Relevant matters
The matters for the purposes of subsection (2) are:
(a)the nature of the goods; and
(b)the price of the goods (if relevant); and
(c)any statements made about the goods on any packaging or label on the goods; and
(d)any representation made about the goods by the supplier or manufacturer of the goods; and
(e)any other relevant circumstances relating to the supply of the goods.
(4)Drawing problems with goods to consumer's attention
If:
(a)goods supplied to a consumer are not of acceptable quality; and
(b)the only reason or reasons why they are not of acceptable quality were specifically drawn to the consumer's attention before the consumer agreed to the supply;
the goods are taken to be of acceptable quality.
(5)Displaying notice with goods
If:
(a)goods are displayed for sale or hire; and
(b)the goods would not be of acceptable quality if they were supplied to a consumer;
the reason or reasons why they are not of acceptable quality are taken, for the purposes of subsection (4), to have been specifically drawn to a consumer's attention if those reasons were disclosed on a written notice that was displayed with the goods and that was transparent.
(6)Abnormal consumer use of goods
Goods do not fail to be of acceptable quality if:
(a)the consumer to whom they are supplied causes them to become of unacceptable quality, or fails to take reasonable steps to prevent them from becoming of unacceptable quality; and
(b)they are damaged by abnormal use.
(7) Examination of goods
Goods do not fail to be of acceptable quality if:
(a)the consumer acquiring the goods examines them before the consumer agrees to the supply of the goods; and
(b)the examination ought reasonably to have revealed that the goods were not of acceptable quality.
Applicant’s Oral evidence
Although scheduled to give evidence at the final hearing according to the trial plan, Dr Quach was not cross examined. Perhaps surprisingly (but perhaps not given how fraught every aspect of the trial was), there was little if any objection to this unusual circumstance. Although he filed multiple Affidavits, including an Affidavit affirmed on 9th June 2023 that was in excess of 530 pages (together with two USBs which had assorted “screen shots” and videos taken by Dr Quach, including some he confirmed he took whilst driving at approximately 110 kph in circumstances where he had previously averred that the vehicle was effectively stuck in his driveway), his “primary” evidence for the final hearing actually came from Mr Kiernan. This was on the basis that he was/is an expert, who generally satisfied the requirements of Rule 15.06 of the Court’s General Federal Law Rules. He also contended that this remarkably sparse, single page Expert Auto Electrics tax invoice prepared by Mr Kiernan was a relevant “expert report.”[13] Formally, and in every other respect, the Tax Invoice, which comprised two paragraphs and sundry references to labour cost (of $165 and a “call out fee” of $110), and is simply self-described on its face as a “Tax Invoice”, and not an expert report, cannot and does not constitute an expert report. It does not remotely comply with the Rules regarding such Reports.[14] The same general comments and formal ruling applies equally to the Tax Invoice from Anthony Costello Automotive. This must be the case even more so because no one gave evidence (or likewise provided no Affidavit annexing a Report) in relation to that Tax Invoice. Simple, and invariably forceful, assertion by the Applicant arguing for the admission of his two “expert reports” was his usual approach.
[13] T 4 – 7
[14] See Division 15.2 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2001 (Cth).
Mr Kiernan was called to give evidence on a preliminary basis under a voir dire, in relation to experience and expertise. He was not listed in the trial plan to give evidence.[15]
[15] According to authority, evidence given at a voir dire can be admitted in the trial proper if relevant to a fact in issue and not subject to any exclusionary rule. See the Full Court decision in Brown v Commissioner of Taxation (2002) 119 FCR 269 at [93] – [94] (Sackville and Finn JJ). Their Honours noted that, among other things, it may even be inferred or implied that evidence given at a voir dire will be taken to be evidence at the trial. They cited authority to the effect that if such evidence is relevant, it will be taken to have been given for the purposes of the trial proper. Here, with understandable reluctance, the Respondent accepted that Mr Kiernan give evidence on a voir dire, but made no concession regarding that evidence being treated as regular for the purposes of the trial. Generally, see s.189 Evidence Act regarding a voir dire.
Oral Evidence of Mr Kiernan
Mr Kiernan confirmed that he was/is an auto electrician. He confirmed that he did not provide any Affidavit to the Court, nor to either of the parties. Thus, the only document available to the Court and the parties prepared by him was the document dated 6th April 2023, marked Exhibit A1, which Mr Kiernan confirmed to be a tax invoice. Mr Kiernan confirmed that he noted on that invoice a number of things about the vehicle in question and that he had inspected the vehicle for approximately one hour to inform those views. Mr Kiernan said he did not attempt to drive the vehicle, and that it was not able to be driven because the battery was flat. After he charged the battery, which allowed him to start the vehicle, he said that he ‘scanned’ it. Mr Kiernan stated that there was a diagnostic report which Dr Quach had, which was produced through this scan.[16]
[16] T 12. This document became part of Exhibit A1.
Mr Kiernan stated that he had a Certificate III in electronics, a Certificate III in auto electrics, and a Certificate IV in technology. He confirmed that Expert Auto Electrics is his own business, which had commenced and been in operation since January 2023. Prior to this, Mr Kiernan said that he worked at Phillip Radiator Service, and that he had worked for 13 years at Advanced Tech Automotive. Mr Kiernan advised that this totalled 24 years in trade experience, which included 13 years working in a shop specialising in European vehicles (Advanced Tech Automotive), which would entitle him (in his view) as an expert in the diagnosis of a Mercedes-Benz of the kind the subject of these proceedings. Mr Kiernan stated that he currently operated his business as a sole trader.[17]
[17] T 13 – 14
Mr Kiernan stated that his Vehicle System “report” was a purely diagnostic report that the “scan tool” created, and that it is a list of “fault codes” detected in the car. The invoice itself, Mr Kiernan said, had no reference or link to the diagnostic report, which was emailed to Dr Quach separately. On the invoice was a ‘scan tool fee’ of $88.00, which was charged by Mr Kiernan to Dr Quach for the diagnostic report.[18] This “Report” only came to light during the trial. As already noted, it became part of Exhibit A1. This Report lists 11 matters that require attention. The nature and severity (or not) of such items was not disclosed or discussed. Significantly, there are approximately 30 items that are described as “No issues found.”
[18] T 14
In cross-examination, Mr Kiernan stated that it was hard to say how many times he had inspected the particular Mercedes V 250 model which is the subject of these proceedings. He said that he had worked on thousands of cars, and on that particular model, possibly half a dozen times or more. Mr Kiernan confirmed that the items that Dr Quach had asked him to check was the park brake being stuck, and warning lights on the dashboard. Mr Kiernan said that there were many lights on the instrument cluster when he inspected the vehicle, including the park brake. He said it was full of fault codes. There was little discussion about these codes (e.g. if they were simply “stored” and therefore historical, or whether they were current codes). He confirmed that the codes could have been to do with the fact the battery was flat. He said that after the battery was recharged, the fault codes were cleared and rechecked by him. Within this process, Mr Kiernan had found that the percentage of the battery’s output was at 68%.[19]
[19] T 14 – 16
Mr Kiernan confirmed that the inspection of the vehicle on 6th April 2023 was the first and last time he had seen the vehicle.[20]
[20] T 16
Mr Kiernan was then cross-examined by the Applicant. Mr Kiernan confirmed that the car had ‘repeated episodes’ of the same issues, including the radar cruise control, lane-keeping and the driver safety system. He stated that he knew this because he had read all of the reports and invoices provided to him from Mercedes-Benz. Mr Kiernan agreed that the car has had problems for its 'entire life.’[21]
[21] T 17 – 19
Subject to what is said later in these reasons, the following observations can readily be made about Mr Kiernan’s quite limited evidence, none of which should be taken as a personal criticism of him (and I will not repeat the earlier determination that Mr Kiernan’s Tax Invoice is not, and cannot be accepted as, an expert report in any respect, either in terms of lack of compliance with the Rules of Court, or in terms of common law principles, discussed below):
(a)The Court (or the Respondent) was never advised, or provided with relevant detail, of what the Applicant provided to Mr Kiernan in terms of documentation, or in terms of any points of “reference” for the preparation of his “Tax Invoice” report;
(b)While the comments in the Tax Invoice are relatively plain (e.g. “Checked all of the owners records and found that there has been many ongoing problems with this vehicle since it was bought …”), they remain at such a level of generality as to be quite meaningless, and certainly unhelpful. Mr Kiernan referred to only two issues (the park brake and the cruise control) and then opined: “… I believe the vehicle should be repaired or replaced by Mercedes as it has had ongoing problems and major defects affecting the safety of the vehicle” (emphasis added). How this rather equivocal evidence, and also because of its utter brevity, assisted the Applicant was never explained.
(c)As he stated, he referred to either “repair” or “replacement”, while the Applicant sought only “replacement” as his remedy. And having referred to only two items of concern (park brake and cruise control), it is impossible to determine how Mr Kiernan came to the conclusion, albeit a completely general one, about “repair or replacement.” “repair”, perhaps; “replacement” – on what basis? It was simply never explained. Even giving every allowance for Mr Kiernan’s experience, the brevity and other significant short-comings of his evidence, provided quite limited assistance to the Court, but essentially no assistance in support of the Applicant’s case. Indeed, in certain respects, in the light of the comments already made, it could reasonably be said that Mr Kiernan’s evidence somewhat undermined it. His evidence certainly did not contain the requisite explanation of how he formed his “opinion”, other than in the most general terms, as required according to the authorities discussed below.
Respondent’s evidence
Evidence of Mr Browne
Mr Browne affirmed an Affidavit on 9th June 2023 (filed 13th June 2023). He is the “Dealer Principal” of the Respondent and effectively is the manager of its operations on a day-to-day basis. Based on “information and belief” from his inquiries at the dealership of the Respondent, pars.6 – 16 set out the various steps taken by both parties in relation to the purchase of the vehicle. This included (par.14) the delivery certificate and delivery checklist prior to the vehicle being handed over to the Applicant. Copies of those documents are at Annexure E to his Affidavit. As might be expected, and while those lists were not exhaustive, they give a general overall indication that the vehicle was in perfect condition, and therefore of “merchantable quality” for the purposes of s.54 of the ACL, for delivery. The Applicant’s signature appears at the end of Vehicle Delivery Checklist, with the date of delivery as 27th February 2019.
Pars.17 – 21 then detail the approximately 14 occasions between 5th March 2019 and 2nd May 2022, when the vehicle was inspected, and various issues noted about it. Most of the attention to issues raised by the Applicant were investigated by the Mercedes-Benz dealership in Canberra rather than in Macarthur, Sydney. The warranty period expired on 26th February 2022. Between the date of delivery and the expiry of warranty date there were approximately 12 instances of issues raised by the Applicant. Of these, some were found to have been established and were thereupon repaired, while other issues raised by the Applicant were not able to be found or replicated by the dealership. There was also one instance (on 29th October 2019) where the mechanic found that the issues complained of seemed to be “accident-related.” No other information in this regard was provided – by either party.
Following the expiry of the warranty period, the Applicant made two further complaints about the vehicle, on 7th April and 2nd May 2022. The issues referred to on the first date (e.g. park brake, tailgate [raised and fixed on an earlier occasion], Bluetooth system, left front sensor, front radar and gear changes (all noted in par.21(a) of Mr Browne’s Affidavit) resulted in the following comment: “… the mechanics were unable to identify any issues relating to gear changes and left front sensor and radar. The mechanics did discover some issues relating to the Bluetooth system, and they were able to resolve this. The mechanics also undertook identified necessary repair works to resolve electrical and material deformations affecting the park brake and tailgate.”
Pars.22 – 27 record the following further check of the vehicle after a mediation between the parties. Those paragraphs were as follows:
22.On or around early October 2022, a representative of the Respondent collected the Vehicle from the Canberra Dealership and delivered the Vehicle to the Macarthur Dealership for inspection. This was done following a without prejudice mediation whereby the parties had agreed to allow the Respondent to undertake a further inspection of the Vehicle.
23.I am informed and believe, based on both a review of the Vehicle File and based on the Respondent's usual practices, a thorough inspection of the Vehicle was performed by mechanics employed by the Respondent.
24.Between 4 October 2022 and 7 October 2022, the Respondent's mechanics carried out an inspection of the electric handbrake, tail gate, front radar, sensors and the ECU relating to the fuel filter heater element (Inspection). The Respondent's mechanics also carried out two road tests to identify any faults responsible for the difficult gear changes and vibrating noises alleged by the Applicant.
25.The Inspection revealed a fault in the ECU relating to the fuel filter heater element. This fault was not the subject of a complain raised by the Applicant. This fault was rectified, and a subsequent road test confirmed that this Issue was resolved.
26.I am informed and believe, based upon a review of the Vehicle File, the Inspection failed to identify any further faults or defects with the Vehicle In relation to the complaints raised by Dr Quach on behalf of the Applicant.
27.Following the Inspection, referred to in paragraphs 23 to 26 above, the Respondent issued a Service Tax Invoice outlining the requested repair orders and the Respondent's findings in relation to each defect alleged by the Applicant. Attached hereto and marked "I" is a copy of this Service Tax Invoice.
Finally, Mr Browne noted the following regarding the Applicant’s claim to obtain a replacement vehicle. At pars.28 – 30, he stated:
28.With reference to the Applicant's Statement of Claim, it is not clear to me whether the Applicant is seeking to obtain a replacement 2019 model V-c\ass 250D vehicle materially identical to the Vehicle, or whether the Applicant is seeking a current model V-class 250D vehicle.
29.If it is the case that the Applicant is seeking, and ultimately does obtain orders for a current model of the V-class 250D vehicle in replacement of the Vehicle, It is important to note that the same model does not exist anymore, with the closest equivalent being a V-class V300 MWB AMG. The purchase price of a V-class V300 MWB AMG greatly exceeds the market value of the Vehicle of the existing model of the Vehicle the subject of the proceedings. The purchase price to purchase a new V-class V300 MWB AMG vehicle as at the date of this affidavit, with the same or similar accessories as the Vehicle the Applicant purchased, is in the order of $165,000. Attached hereto and marked "J" is a quote for a new v-class V300 MWB AMG vehicle.
30.Based upon my knowledge of the Inspection, I am of the view that the Vehicle does not have any defects and that any issues that have been identified (and outlined above) have been promptly remedied.
Mr Browne’s oral evidence was as follows.
After outlining his work history in the motor vehicle industry (as set out in his Affidavit, namely, 18 years – see par.4), he confirmed that he managed the operations of the dealership at Peter Warren Automotive and had been working there for 7 months. He said he was at another Mercedes-Benz Dealership, G Brothers, for five years prior to his current position.[22]
[22] T 26
Mr Browne agreed that Mercedes-Benz ‘pride themselves’ on safety. He confirmed that he had read the history available to him on the Applicant’s vehicle. He was unsure whether the driver assistance malfunctioning was a safety issue. Mr Browne accepted that the vehicle had been returned to the Respondent’s, and to the Canberra, dealerships to address issues raised by the Applicant. To his knowledge, Mr Browne said that there was nothing wrong with the car on 28th February 2022, based on the records of the company. Mr Browne was unsure what was wrong with the vehicle on 3rd May 2022. Based on the information provided to him, Mr Browne confirmed that he maintained the position that there was nothing wrong with the car as at that date.[23]
[23] T 27 – 31
Mr Browne was shown a diagnosis from the Mercedes-Benz branded diagnosis software, XENTRY, dated 6th October 2022, which stated that there was an error in the control unit. Mr Browne stated that at the time, it appears that an error code was displayed, but he could not be sure what the possible causes or remedies were. Mr Browne confirmed that diagnostic records were not his area of expertise. Mr Browne was unsure whether the control unit malfunction had been dealt with by his service department.[24]
[24] T 31 – 35
Mr Browne confirmed that as at 13th June 2023, after having reviewed the records of this proceeding and any handover given to him from Mr Simon Verdubich (his predecessor), he still held the position that there was nothing wrong with the car. Mr Browne was then shown a document which included a statement that said that the brakes had failed on the car, and that the towbar drained the battery. Mr Browne said that he was generally familiar with customer complaints and their nature in his role as manager, and that this appeared to be a customer complaint rather than a diagnostic, expert or condition report. Mr Browne confirmed that his dealership would have installed the towbar at the time of delivery. Mr Browne was unsure of any outstanding warranty issues on the Applicant’s vehicle as of 2nd May 2022. After being shown various documents produced under subpoena by the dealership, Mr Browne did not change his position that there was nothing wrong with the car as of 9th June 2023. Further, he maintained his position that there was nothing wrong with the vehicle based on the information he had been provided as of the date of his oral evidence.[25]
[25] T 37 – 47
Mr Browne was not aware of any servicing or repair of the vehicle other than the recordings listed in the XENTRY document dated 6th October 2022. Mr Browne stated that the reading of the ‘displayed gear range malfunction’ does not necessarily indicate a malfunction, as it also recorded that the vehicle can be switched on and off and the message might then disappear. Mr Browne was unsure whether this had been addressed by his workshop, however, he stated that all of the concerns raised were checked and nothing was found in October 2022.[26]
[26] T 47 – 51
The Applicant then showed Mr Browne a series of images and a video which he submitted were images he had taken of the dashboard and instrument cluster in his vehicle. The images were dated 4th March 2020. Mr Browne read the codes which appeared on each image and said that he was not sure that they were all faults. Mr Browne did not accept that there was something wrong with the instrument cluster or control unit based on these images and video.[27] As an observation only at this stage, effectively providing “screen shots” of a dashboard and various highlighted images (which were also apparently now some years old) not only was extremely difficult to read (or de-cipher) but the circumstances, driving conditions and situation of the vehicle were never explained by the Applicant. Nor did the Applicant explain how a “code” of one kind or another necessarily meant that something was wrong. For example, the codes might (in many respects) simply be alerting the driver to things like, “low fuel”, “service due” and the like. A fundamental difficulty for the Applicant is simply that the various “codes” he referred to were either not explained, or even in the “scanned report” of Mr Kiernan, most of the codes he referred to are listed as “stored”, which was also not explained. Further still, a general description set out in Mr Kiernan’s “scan report” provides a description also of “malfunction” or “general failure”, but the nature of the malfunction and notably its severity and import is nowhere explained. Thus, simply to provide a sample of comments from Mr Kiernan, I note the following selection of matters, among a number of others, from his Scan Report:
Electronic ignition switch: B210D-00 The Power Supply is Too Low. There is a general Failure. Stored
Electronic Parking Brake: B210D00 & C102700 Control Unit Electric Parking Brake Has Detected An Under Voltage
Instrument Panel: B1FD7-97 The Indicator Lamp “ESP” Has a Malfunction. The System Function is Restricted – Stored
Instrument Panel: B1FDE-97 The Indicator Lamp ‘SRS’ Has a Malfunction. The System Function is Restricted – Stored
Shift Module: B210A-00 The Power Supply in The System is Too Low. There is a General Failure – Stored
Shift Module: UO121-87 Communication with ESP has a malfunction. The message is missing
[27] T 51 – 57
As already observed, there was no explanation of these general descriptions by either the Applicant or by Mr Kiernan. Regrettably, because there was no expert report, there was no independent evidence to explain either what these codes mean, and significantly, the specific import of them, and critically, what the significance of them is or was to the performance and quality of the vehicle at any given point in time. There is simply no such evidence provided by the Applicant or on his behalf.
Returning to Mr Browne’s oral evidence, he said that had not seen the tax invoice of Mr Anthony Costello. He said he was not shown any such document in his handover from Mr Verdubich, and that the handover was primarily focused on the business of the dealership, staff and remuneration rather than customer complaints, which had been very briefly discussed. Mr Browne said he did not know anything about towbar wiring or a complaint relating to it. Mr Browne said that normal practice would be to create ‘jobs’ such as those listed on the 6th October 2022 tax invoice regardless of whether or not the dealership believed they existed or not. They would simply reflect the customer’s concerns. It would then be up to them to check the cause and make any correction if required. Some of the codes, he said, might be stored codes, meaning that they were not current. Indeed, as already noted, the Scan Report of Mr Kiernan is replete with reference to “stored” reports or “stored codes”; thus (on Mr Browne’s evidence) these matters were not current issues. He said that reading off the document provided by the Applicant, there was nothing wrong with the vehicle.[28]
[28] T 57 – 63
Mr Browne advised that there would need to be far more investigation of the vehicle, rather than simply noting codes from the diagnostic tool, to show any need for warranty repair. He said that because some faults go away on their own and some are merely ‘stored’ fault codes, Mercedes-Benz would not necessarily repair a vehicle simply because a “fault” was found. He said that if a repair was needed outside the manufacturer’s warranty period, it would be a decision for Mercedes-Benz whether or not to repair the vehicle under warranty. Mr Browne stated that the dealership could make recommendations, but it was ultimately not their decision. He was not aware whether the dealership made any such recommendations for the Applicant’s vehicle. Mr Browne denied the existence of any ‘good will’ program to repair vehicles.[29]
[29] T 64 – 67
It was confirmed that Mercedes-Benz would ultimately make the decision as to whether a replacement vehicle would be required, based on any records held by the dealership. Mr Browne said that dealerships do not generally make recommendations as to whether a replacement vehicle should or should not be provided. He said that in the case of the Applicant’s car, assuming that the Applicant’s concerns were established, he would submit the information to Mercedes-Benz, and it would ultimately be up to them to decide to provide a replacement vehicle. He said he would assume that the dealership would attempt to fix any issues prior to this, however.[30]
[30] T 69
Mr Browne’s evidence was clear and helpful. Among other things, for example, his comments about the “stored [fault] messages” was, in fact, the only evidence on that subject before the Court. It clarified a significant matter, whereas the Applicant (and Mr Kiernan) simply noted such records, without comment and obviously assumed that it was self-evident that “faults” were shown but did not appreciate the difference between historical and current faults, with, apparently, those shown or recorded, being almost totally “historical.” This would also accord with (a) the evidence of Mr Browne, and (b) the records of the assessment done by Mercedes-Benz where its service team was, in large part, unable to replicate the faults complained of by the Applicant. As already noted, this was set out in the Service Tax Invoice of 6th October 2022. The historicity of those faults, and the operation of the car’s recording of the history of faults, was never addressed, let alone explained, by the Applicant (or Mr Kiernan). Plainly, an independent expert would have been able to shed light on such matters. In my view, Mr Browne had no “agenda” for or against the Applicant. His evidence was quite “matter-of-fact”, free of any bias or obvious preference. I accept his evidence without qualification.
It should also be noted that Annexed to the Applicant’s Affidavit of 9th June 2023 (at pp.28-32) is a Service Tax Invoice issued by Mercedes-Benz Macarthur, dated 6th October 2022. This document listed 7 “jobs” (items for attention). The first of these was stated to be “Park brake fault”. Among a range of comments, the dealership noted that “no warning messages on dash as per complaint”, “found no faults current or stored in system”, “Found working as per normal”, “Found all values within spec”, and concluded “All functions working as per normal.” Job 2 reported similarly, and so on, with each item being addressed and attended to as required. This document became Exhibit MB1. It was a clear and important document. It was not, however, and obviously so, an expert report.
Preliminary Matters – procedural and other
Oral submissions on behalf of the Applicant
Both parties gave brief oral submissions on the four issues in dispute as outlined in the Respondent’s Case Outline filed 24th October 2023. Those issues (noted above) were; (a) Whether the Applicant is the proper Applicant in the proceedings; (b) Whether the Vehicle is not of an acceptable quality due to alleged defects; (c) Whether Dr Quach has authority to pursue the litigation or represent the Applicant; and (d) Whether the Applicant has discharged its onus of proof in respect of its claim.
It will be recalled that the “proper Applicant” and “legal representation of the company” issues were dealt with in the early part of these reasons. The various arguments regarding these issues are included here simply for completeness.
The proper Applicant in the proceedings and the authority of Dr Quach to pursue the litigation or represent the Applicant
Items (a) and (c) were dealt with together in oral submissions. Dr Quach confirmed that there were multiple documents issued by Mercedes-Benz listing himself as the customer, yet multiple others that showed the current Applicant, QE Family Pty Ltd, as the customer. Dr Quach stated that the vehicle was purchased in his name, however, he had asked the salesperson to register it in the name of QE Family Pty Ltd shortly thereafter. He said he was the director of that company. Dr Quach said that he had lodged and filed an Application in a Proceeding for leave for the Court to allow him to represent QE Family Pty Ltd. This Application was handed up in Court, unsealed. Dr Quach confirmed it had been lodged on the previous day.[31]
[31] T 21
It was agreed that the Applicant would rely on his written submissions to address items (b) and (d).
For completeness, the three paragraphs from the Applicant’s principal Affidavit, filed 9th June 2023, are as follows:
1.In support of the originating application, attached to this affidavit is a compilation of evidence in the form of photos, emails, reports, documents produced by subpoena from Mercedes Benz Canberra, Peter Warren Automotive and Mercedes Benz Australia/Pacific, etc…
2.This affidavit has attached a USB drive with video evidence of six videos: 1. Video of 31 October 2019 Speedometer malfunction, 2. Video of 4 March 2020 Multisystem failure and car immobilised, 3. Video 15 July 2020 Bluetooth failure with no sound and disconnection, 4. Video 24 July 2020 Bluetooth failure with no sound, 5. Video 30 July 2020 Bluetooth failure with no sound.
3.The vehicle in question has multiple system defects and recurring faults. Numerous attempts have been, but the vehicle is irreparable.
Oral submissions on behalf of the Respondent
The Respondent relied on its written submissions to address items (a), (b) and (c) as outlined in their Case Outline filed 24th October 2023. Briefly, the Respondent gave oral submissions on item (d); ‘Whether the Applicant has discharged its onus of proof in respect of its claim,’ including any objections to the Applicant’s Affidavits. It was confirmed by the Respondent’s Counsel that item (d) related to item (b); ‘Whether the Vehicle is not of an acceptable quality due to alleged defects.’
The Respondent’s Counsel confirmed that Mr Browne’s evidence related to items (b) and (d). It was submitted that the Applicant’s Affidavit of 9th June 2023 annexed a number of other Affidavits. It was the Respondent’s submission that most objections were to the length of the Affidavit, mainly the attachments and annexures. The only objection to the text of the Affidavit held by the Respondent was paragraph 3, due to it being opinion evidence that the vehicle in question has multiple system defects and recurring faults and was/is irreparable. It was submitted that this was inadmissible.[32] It obviously could also have been objected to on the basis that it was a “conclusion.” It could perhaps be considered, and accepted, that this was simply the view of the Applicant, which it clearly was. It could not be treated or regarded as anything else.
[32] T 73 – 74
It was further submitted that pages 8-11 of the Applicant’s Affidavit of 9th June 2023, including JPEG images, were without explanation and do not assist the Court to make a determination about the existence of a defect. It was submitted that without an expert report, no conclusions could be drawn from these images about any faults. The same submission was made for the images annexed at pages 18 to 25, 46, and 49 to 51, as well as the six videos.[33] As already noted, here was certainly never any explanation by the Applicant or on his behalf , and patently no independent expert evidence, to explain or comment on any of the images provided by and relied upon by the Applicant.
[33] T 74 - 79
On Mr Kiernan’s tax invoice of April 2023, it was submitted that under the heading “For your attention”, the comments were based purely on what Mr Kiernan was told by Dr Quach. The Respondent has no record of what was provided to Mr Kiernan to generate this opinion.[34]
[34] T 80
It was agreed that the Respondent would expand on such submissions in written form.
Written submissions on behalf of the Applicant
Applicant’s Interlocutory Submissions
In response to the Court’s Orders dated 8th August 2023 to file submissions for the Procedural Hearing on 7th September 2023 regarding compliance with Court Rules (among other things), and in particular concerning expert reports, the Applicant filed one very brief document, dated 31st August 2023. This document was as follows:
I have complied with Neville J Order 1 of 3 July 2023.
I have provided the respondent with the vehicle for inspection by its expert in October 2022 for one week, pursuant to the directions of the Wigney J.
The Applicant’s expert Tim Kiernen’s report appears on page 58 of the Affidavit of Dr Michael Van Thanh Quach of 9 July 2023.
The respondent’s application should be dismissed.
Applicant’s Opening Submissions
The Applicant’s opening Submissions were filed on 23rd October 2023; they were as follows (emphasis in original; footnotes omitted):
1.I read my Affidavit of Dr Michael Van Thanh Quach of 9 June 2023.
2.I do not read pages 26-32 of my Affidavit 9 June 2023. I do not read the report from Peter Warren Automotive trading as Mercedes Benz Macarthur dated 6 October 2022 as evidence in support of my claim.
3.The respondent has had in its possession evidence of multisystem faults and failures (Affidavit 9 June 2023, p 13 -14), since October 2019, less than 9 months after delivery.
4.The respondent has manufacturer’s warranty obligations with respect to the vehicle. The respondent has refused to rectify recurrent problems with the vehicle in 2019 and again in 2022 (Affidavit 9 June 2023, page 15).
5.There are Mercedes Benz Canberra experts reports, equivalent to the respondent’s, that outlines ongoing defects with the car (Affidavit 9 June 2023, page 33-41). These defects are recurrent and irreparable.
6.The court should grant the claim and order Peter Warren Automotive trading as Mercedes Benz Macarthur to provide a new replacement vehicle.
Applicant’s Closing Submissions
The Applicant’s first set of closing Submissions were filed on 20th November 2023; they were as follows (emphasis in original; footnotes omitted):[35]
[35] The Court’s subsequent references will be to these submissions and not to the “supplementary submission” filed without leave noted below.
1.This proceeding is by order of the Federal Court of Australia, Wigney J of 6 December 2022 is transferred to the Federal Circuit and Family Court of Australia.
The order for the Federal Circuit and Family Court to the determine to questions,
1. Guarantee of quality of the vehicle in question.
2. Leave to change of name to Michael Van Thanh Quach v Peter Warren Automotive trading as Mercedes Benz Macarthur.
Guarantee of quality of the vehicle in question (s54 of the Australian Consumer Law)
2.With respect to question number 1, the Court takes the position that Mercedes Benz defects can only be property [sic: “properly”] diagnosed with Mercedes Benz equipment, transcript p11, line 20-23. This is pressed by the respondent, transcript p11, line 29 to 38.
3.The Court stated that would admit the business records as evidence, transcript 23, line 22-24. The Applicant agrees that Mercedes Benz equipment should be used to properly diagnose defects, and that the business records of Mercedes Benz Australia/Pacific and its agents, Peter Warren Automotive and Mercedes Benz Canberra are admitted into evidence.
4.The following evidence from the Court book was referred to:
I.Xentry diagnostic scan 05/10/2022, Court book pages 395 to 402. The faulty control unit for the instrument cluster is diagnosed on page 401 of the Court book.
II.Service report of fault codes from Xentry scan 19/11/2019, page 359 of the Court book.
III.Business record of Mercedes Benz Australia/Pacific showing ‘Brakes failed to bar wired drains battery.’ page 422 of Court book.
IV.Testimony under oath of Daniel Browne, page 41, line 45, ‘I think we installed it [tow bar] at the dealership.’
V.Other pages referred to in the Court booking during the hearing.
6.In relation to the defects diagnosed by Mercedes Benz equipment, the expert reports provided by Anthony Costello and Tim Kiernan’s report and testimony are consistent with that.
7.The respondent changed its position on the defects of the car in question,
‘I’m just saying his position was never there was nothing wrong with it,…’ Transcript p61, line 35-36.
8.The Service report of 6 October 2022, provided by the respondent, is false and misleading. This service report is contradicts [sic] the XENTRY scan that shows the control unit of the instrument cluster is faulty. The witness, Daniel Browne has testified that not all defects have been dealt with, transcript page 50, line 36-37,
‘It doesn’t appear that we did works for that particular concern.’
9.The service report relied on by the respondent is at odds with all other Mercedes Benz produced diagnostic and service reports and business records, namely from Mercedes Benz Canberra and Mercedes Benz Australia/Pacific itself.
10.The respondent’s service report of 6 October 2022 by the respondent cannot be admitted into evidence.[36]
[36] The Applicant did not explain why this document could not be admitted into evidence.
11.The evidence before the Court on the vehicle in question is that, it was delivered:
I.‘Brakes failed to bar wired drains battery.’
II.Symptoms of faulty instrument cluster warnings (see Affidavit 9 June 2023 and USB stick filed), eg ‘Lane keeping assists inoperative,’ ‘Tyre pressure sensor’ fault warnings, ‘circulating faulty warnings,’’ Park brake failure,’ and many more. These symptoms have been present form the day of delivery, 29 February 2019.
III.Mercedes Benz genuine diagnostic reports and letterheads from Mercedes Benz Canberra showing repeated faults and errors, ranging from faulty control unit for instrument cluster, park brake, radar cruise control and other driver assist systems (ADAS).
12.The respondent has changed its position to say there are outstanding issues with the vehicle.
13.The guarantee of quality pursuant to the s54 of the Australian Consumer Law has been breached. The respondent as the agent for Mercedes Benz Australia/Pacific is refusing honour its warranty on the vehicle. The respondent’s evidence is at odds with the evidence from other Mercedes Benz service centres (namely Mercedes Benz Canberra), and at odds with the business record of its parent company Mercedes Benz Australia/Pacific.
14.In relation to other issues raised by the respondent, this proceeding was Ordered Wigney J to be determined by the Federal Circuit and Family Court of Australia. This proceeding does not have the scope as suggested by the respondent.
Other issues raised by respondent are irrelevant.
The Applicant is the proper Applicant in the proceeding?
I rely on the Affidavit of 29 October 2023, and the Affidavit of 7 September 2023.
The Applicant being Michael Van Thanh Quach, pursuant to the laws of Absolute Entitlement, was the ‘relevant owner,’ of the vehicle at the time the proceeding was commence in the Federal Court of Australia on 7 April 2022 (Affidavit 29 October 2023).
My wife is now the ‘relevant owner,’ and I have her authority to act (Affidavit 7 September 2023).
Whether Dr Quach has authority to pursue the litigation or represent the Applicant?
The Federal Court of Australia, Wigney J, ordered the transfer of the interlocutory application for leave to change the name of the proceeding to Michael Van Thanh Quach v Peter Warren Automotive trading as Mercedes Benz Macarthur. I have the authority to represent myself as the ‘relevant owner,’ at the time the interlocutory application was filed in the Federal Court of Australia, date stamped 25 August 2023.
I now have the authority from my wife, who is the ‘relevant owner,’ of the vehicle. The authority to act appears in Affidavit 7 September 2023, Letter of Authority.
Whether the Applicant has discharged its onus of proof its respect of its claim?
The Federal Court of Australia, Wigney J, was satisfied that the respondent had an opportunity to inspect the vehicle, prior to the Order to transfer the matter(s) to the Federal Circuit and Family Court of Australia. I refer to my submissions in part (b).
Applicant’s recusal submissions
A second set of written submissions were filed by the Applicant on 11th December 2023, which added a new, single submission seeking the Court’s recusal and otherwise simply repeated the first set of submissions. No leave was sought for these additional submissions; nor was leave granted. Those “supplementary” submissions were as follows (emphasis in original; footnotes omitted):
1.I rely on the Wigney J ruling in Stradford (a pseudonym) v Judge Vasta [2023] FCA 1020 to ask for Neville J to recuse yourself. Neville J has prejudged the substantive matter and improperly used evidence of the respondent’s inspection of the vehicle (service report dated 6 October 2022) in a personal attack on me, as reasons for an order for security for costs.
2.This proceeding is by order of the Federal Court of Australia, Wigney J of 6 December 2022, is transferred to the Federal Circuit and Family Court of Australia.
The order for the Federal Circuit and Family Court to the determine to questions,
1.Guarantee of quality of the vehicle in question.
2.Leave to change of name to Michael Van Thanh Quach v Peter Warren Automotive trading as Mercedes Benz Macarthur.
Guarantee of quality of the vehicle in question (s54 of the Australian Consumer Law)
3.With respect to question number 1, the Court takes the position that Mercedes Benz defects can only be property [sic: “properly”] diagnosed with Mercedes Benz equipment, transcript p11, line 20-23. This is pressed by the respondent, transcript p11, line 29 to 38.
4.The Court stated that would admit the business records as evidence, transcript 23, line 22-24. The Applicant agrees that Mercedes Benz equipment should be used to properly diagnose defects, and that the business records of Mercedes Benz Australia/Pacific and its agents, Peter Warren Automotive and Mercedes Benz Canberra are admitted into evidence.
5.The following evidence from the Court book was referred to:
I.Xentry diagnostic scan 05/10/2022, Court book pages 395 to 402. The faulty control unit for the instrument cluster is diagnosed on page 401 of the Court book.
II.Service report of fault codes from Xentry scan 19/11/2019, page 359 of the Court book.
III.Business record of Mercedes Benz Australia/Pacific showing ‘Brakes failed towbar wired drains battery.’ page 422 of Court book.
IV.Testimony under oath of Daniel Browne, page 41, line 45,
‘I think we installed it [tow bar] at the dealership.’
V.Other pages referred to in the Court booking during the hearing.
6.In relation to the defects diagnosed by Mercedes Benz equipment, the expert reports provided by Anthony Costello and Tim Kiernan’s report and testimony are consistent with that.
7.The respondent changed its position on the defects of the car in question,
‘I’m just saying his position was never there was nothing wrong with it,…’ Transcript p61, line 35-36.
8.The service report of 6 October 2022, provided by the respondent, is false and misleading. This service report contradicts the XENTRY scan that shows the control unit of the instrument cluster is faulty. The witness, Daniel Browne has testified that not all defects have been dealt with, transcript page 50, line 36-37,
‘It doesn’t appear that we did works for that particular concern.’
9.The service report relied on by the respondent is at odds with all other Mercedes Benz produced diagnostic and service reports and business records, namely from Mercedes Benz Canberra and Mercedes Benz Australia/Pacific itself.
10.The respondent’s service report of 6 October 2022 by the respondent cannot be admitted into evidence. The respondent admits that there are fault(s) on the vehicle that do no appear on the service report. The respondent has changed its position to say there are outstanding issues with the vehicle.
11.The evidence before the Court on the vehicle in question is that, it was delivered:
I.‘Brakes failed to bar wired drains battery.’
II.Symptoms of faulty instrument cluster warnings (see Affidavit 9 June 2023 and USB stick filed), eg ‘Lane keeping assists inoperative,’ ‘Tyre pressure sensor’ fault warnings, ‘circulating faulty warnings,’’Park brake failure,’ and many more. These symptoms have been present form the day of delivery, 29 February 2019.
III.Mercedes Benz genuine diagnostic reports and letterheads from Mercedes Benz Canberra showing repeated faults and errors, ranging from faulty control unit for instrument cluster, park brake, radar cruise control and other driver assist systems (ADAS).
12.The guarantee of quality pursuant to the s54 of the Australian Consumer Law has been breached. The respondent as the agent for Mercedes Benz Australia/Pacific is refusing honour its warranty on the vehicle. The respondent’s evidence is at odds with the evidence from other Mercedes Benz service centres (namely Mercedes Benz Canberra), and at odds with the business record of its parent company Mercedes Benz Australia/Pacific.
13.In relation to other issues raised by the respondent, this proceeding was Ordered Wigney J to be determined by the Federal Circuit and Family Court of Australia. This proceeding does not have the scope as suggested by the respondent.
Other issues raised by respondent are irrelevant.
The Applicant is the proper Applicant in the proceeding?
I rely on the Affidavit of 29 October 2023, and the Affidavit of 7 September 2023.
The Applicant being Michael Van Thanh Quach, pursuant to the laws of Absolute Entitlement, was the ‘relevant owner,’ of the vehicle at the time the proceeding was commence in the Federal Court of Australia on 7 April 2022 (Affidavit 29 October 2023).
As at 1 December 2023, I am the sole director of QE Family Pty Ltd. I am the ‘relevant owner,’ of the vehicle in question at the time of writing this submission. Please see attached redacted ASIC search of 11 December 2023.
Whether Dr Quach has authority to pursue the litigation or represent the Applicant?
The Federal Court of Australia, Wigney J, ordered the transfer of the interlocutory application for leave to change the name of the proceeding to Michael Van Thanh Quach v Peter Warren Automotive trading as Mercedes Benz Macarthur. I have the authority to represent myself as the ‘relevant owner,’ at the time the interlocutory application was filed in the Federal Court of Australia, date stamped 25 August 2023.
I am the ‘relevant owner’ of the vehicle in question. I have the authority to pursue the litigation.
Whether the Applicant has discharged its onus of proof its respect of its claim?
The Federal Court of Australia, Wigney J, was satisfied that the respondent had an opportunity to inspect the vehicle, prior to the Order to transfer the matter(s) to the Federal Circuit and Family Court of Australia.
The respondent’s defence that there is nothing wrong with the vehicle is wrong. The respondent admits to faults that were not addressed, being the faulty instrument cluster control unit. Also, at the level of a dealer principal, that the respondent would not know about the brake failure due to towbar draining the battery. I refer to the testimony under oath of Daniel Browne.
Both major faults originate from the time of delivery They involve safety system failures, in particular brake failure. Therefore the respondent is in breach of s 54 of the Australian Consumer Act, Guarantee of quality.
Written submissions on behalf of the Respondent
Respondent’s Interlocutory Submissions
Order 2 of Orders made 8th August 2023 was in the following terms (emphasis added):
No later than 7 days prior to the Procedural Hearing, being by 31 August 2023, in addition to the material outlined in Order 5 of the Orders of 3 July 2023, each party is to file and serve a single page Outline of Written Submissions regarding compliance with the Federal Circuit and Family Court of Australia (General Federal Law) Rules 2021 in relation to Expert Reports and the Federal Court’s Expert Evidence Practice Note.
The Respondent’s submissions on expert reports in response to this Order, filed 31st August 2023, were in the following terms:
RESPONDENT’S OUTLINE OF SUBMISSIONS ON EXPERT EVIDENCE
1.The proceedings concern allegations of the delivery by the Respondent to the Applicant of a Mercedes-Benz V250, VIN WDF44781323550055 (Vehicle) that is not of acceptable quality and therefore contains alleged defects and requires repairs to be undertaken.
2.The Respondent, during mediation in October 2022, inspected the Vehicle by its own mechanics and obtained an internal report on 6 October 2022, which did not find any major faults with the Vehicle as alleged by the Applicant (Internal Report). The Applicant has not accepted the findings of the Internal Report.
3.The Internal Report is not and was never intended to qualify as expert evidence pursuant to Division 15.2 of the Federal Circuit and Family Court of Australia (General Federal Law) Rules 2021 ("FCFCA General Rules") or the Federal Court's Practice Note on Expert Witnesses ("GPN-EXPT") (as set out in Rule 15.06 of the FCFCA General Rules).
4.The Applicant seeks to rely upon two expert reports attached to his affidavit evidence (Applicant's Reports). Both documents are 1 page Tax Invoices from a mechanic and automotive electrician respectively. The Applicant's Reports would not satisfy the requirements of the FCFCA General Rules or GPN-EXPT in so far as they do not specify or provide:
a.The name and address of the expert;
b.An acknowledgement that the expert has read the Harmonised Expert Witness Code of Conduct or GPN-EXPT and agrees to be bound by them;
a.The qualifications of the expert to prepare the report;
b.A declaration that the expert has made all the inquiries which the expert believes are desirable and appropriate and that no matters of significance which the expert regards as relevant have, to the knowledge of the expert, been withheld from the Court;
c.The questions that the expert was asked to address;
d.The report was not signed by the expert nor did the report attach/exhibit any document that documents any instructions given to the expert.
5.The Respondent also contends that Mercedes-Benz computer systems for diagnostic testing are exclusive to Mercedes-Benz and therefore can only be accessed at a Mercedes-Benz service centre. The Respondent submits that the Applicant's Reports were not completed at a Mercedes-Benz service centre.
6.To date, and despite the Courts orders and the Respondents repeated requests, the Applicant has refused to make the Vehicle available for inspection for the Respondents independent expert.
7.In Australian Competition and Consumer Commission v Mazda Australia Pty Ltd, the Court afforded little weight to expert evidence that did not have the benefit of inspecting the vehicles the subject of the proceedings. Similarly, in the present matter, the Respondent submits that any report produced by an expert who has not had the benefit of inspecting the vehicle is of little utility to the Court. Without access to the Vehicle for inspection, the Respondent is inhibited from providing an adequate expert report, and given there are no current reports available in the proceedings in compliance with the FCFCA General Rules or GPN-EXPT, it would be a waste of the Courts resources for the proceedings to continue in the absence of expert evidence.
Respondent’s Opening Submissions
The Respondent’s opening Outline of Submissions were filed on 24th October 2023. Subject to what is said later, this outline provides a very helpful summary of the facts as they stood as at the commencement of the trial, equally so of the relevant law in relation to the ACL, and the application of that law to the facts as then known. They should have been of special assistance to the self-represented, but regrettably overly confident and ill-informed, Applicant. The submissions were as follows (emphasis in original; footnotes omitted):
Introduction
1.The Respondent, Peter Warren Automotive t/a Mercedes-Benz Macarthur is a company incorporated in Australia which operates a group of automotive dealerships.
2.The Applicant, QE Family Pty Ltd, is a company incorporated in Australia which appears to be the trustee of QE Tai Sing Family Trust.
3.On 7 April 2022, the Applicant commenced proceedings against the Respondent in the Federal Court of Australia.
4.On 6 December 2022, the proceedings were transferred to this Court.
5.The proceedings concern the sale by the Respondent to the Applicant of a new Mercedes Benz V- class V250M Avantgarde vehicle, VIN WDF44781323550055 (Vehicle), which the Applicant agreed to purchase in September 2018 and took delivery of on 27 February 2019.
6.The Applicant alleges that the Vehicle is defective and is now irreparable.
7.The Vehicle has been serviced by the Respondent (or its Canberra-based counterpart) on numerous occasions since March 2019. Where there were any faults identified (which the Respondent says were minor), they were immediately rectified without charge.
8.In October 2022, following mediation, the Respondent undertook a detailed examination and testing of the Vehicle, and was not able to replicate any of the faults alleged by the Applicant. The Applicant has not allowed the Respondent access to the Vehicle since that time to conduct any updated assessment.
9.The Applicant has not filed any expert evidence
10.In the circumstances, the Court cannot be satisfied that the Applicant has discharged its onus to establish that the Vehicle is not of acceptable quality.
The Applicant’s claim
11.The Applicant claims that the Respondent has breached the consumer guarantee under section 54 of the Competition and Consumer Act 2010 (Cth), Schedule 2, The Australian Consumer Law (ACL) that the goods supplied by it are not of acceptable quality.
12.It is not in dispute that the guarantee as to acceptable quality under section 54 of the ACL applies to the Respondent’s sale of the Vehicle to the Applicant.
13.The Applicant alleges that the Vehicle has a number of defects, which the Respondent has failed to rectify.
14.The Applicant seeks the following final relief:
a. The replacement of the Vehicle with a new V-class 250 vehicle model;
b. Costs;
c. Interest; and
d. Compensatory damages.
Preliminary issues
15.There are 2 preliminary issues that the Court may be required to decide (depending on how the Applicant’s position is put at hearing):
a.The identity of the purchaser of the Vehicle; and
b.Leave for the Applicant to be represented by Dr Michael Quach (Dr Quach).
The purchaser of the Vehicle
16.The Respondent accepts the position currently pleaded by the Applicant, QE Family Pty Ltd: that it was the purchaser of the Vehicle and is therefore the proper Applicant in these proceedings.
17.This is borne out by the evidence: by the time the Vehicle was delivered, the documents had been changed to reflect Dr Quach’s request that they be in the Applicant’s name.
Representation of the Applicant
18.At all material times in respect of the purchase of the Vehicle as well as the carriage of the current proceeding, Dr Quach has been acting on behalf of the Applicant.
19.Pursuant to rule 9.04 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 ("FCFCA General Rules"), a corporation may not start or carry on a proceeding otherwise than by a lawyer, unless it has leave of the Court.
20.Dr Quach is not a legal practitioner, nor a current director of the Applicant. Dr Quach has not been granted leave by the Court to represent the Applicant. Dr Quach has sought to provide an authority from the current director of the Applicant, being Vesna Quach to act on behalf of the Applicant. However, any such authority does not get around the requirements of Rule 9.04 of the FCFCA General Rules.
21.It is for the Court to determine whether leave should be granted for the Applicant to be represented by Dr Quach. Such leave of the Court has not been granted. Without it, Dr Quach does not have authority to pursue the litigation for the Applicant.
Alleged contravention of ACL
Was the Vehicle of acceptable quality?
22.Section 54 of the ACL establishes an obligation on a supplier, in this matter the Respondent, that the goods supplied, being the Vehicle, are of acceptable quality. Section 54(2) of the ACL establishes the criteria for 'acceptable quality' being that the goods are:
a.Fit for all the purposes for which goods of that kind are commonly supplied; and
b.Acceptable in appearance and finish; and
c.Free from defects; and
d.Safe; and
e.Durable.
23.The time at which ‘acceptable quality’ is to be assessed is when the goods are supplied to the consumer.
24.The onus is on the Applicant to prove that the Respondent contravened the consumer guarantee.
25.The Vehicle was delivered to Dr Quach in roadworthy condition after it had been inspected, without any known or visible defects.
26.The Respondent’s service records show that on each occasion Dr Quach returned the Vehicle to either the Mercedes-Benz Macarthur dealership or the Mercedes-Benz Canberra dealership notifying of alleged faults, the Vehicle has been inspected with a view to investigating those particular faults. Where any problem with the Vehicle was identified, it was rectified by the Respondent prior to the Vehicle being returned to Dr Quach. The Respondent says that the faults identified by the Respondent as requiring rectification were relatively minor.
27.On many occasions, the Respondent was unable to replicate the fault alleged by the Applicant despite repeated investigations and testing.
28.The Respondent’s position is that:
a.The Vehicle delivered to Dr Quach was of acceptable quality in accordance with section 54 of the ACL;
b.To the extent that there were faults identified, under section 261(b) of the ACL, the Respondent was entitled to elect to repair them, which it did;
c.The existence of some minor issues that have been identified in the Vehicle post-delivery (which have been repaired) does not in itself entitle the Applicant to a replacement of the Vehicle or compensatory damages.
The Applicant’s evidence
29.The Applicant's evidence is in the form of extremely minimal affidavits, annexing vast amounts of documents without explanation – including:
a.Service records from the Respondent, the Mercedes-Benz Canberra dealership and Mercedes Benz Australia Pacific (many of these are replicated, and where relevant are annexed to the affidavit of Daniel Browne affirmed 9 June 2023);
b.Photos and videos, presumably taken by Dr Quach, purporting to show faults with the Vehicle;
c.Tax invoices from an Anthony Costello and Expert Auto Electrics, which appear to be car mechanics.
30.The majority of this evidence relates to the period before 6 October 2022, when, following the mediation on 28 September 2022, the Respondent undertook a thorough inspection of the Vehicle, and could not substantiate any of the faults alleged by the Applicant. Out of that inspection, the Respondent produced a report dated 6 October 2022 (Internal Report).
31.The Internal Report is not and was never intended to qualify as expert evidence pursuant to Division 15.2 of the FCFCA General Rules or the Federal Court's Practice Note on Expert Witnesses ("GPN-EXPT") (as set out in Rule 15.06 of the FCFCA General Rules).
32.However, the Respondent submits that it can be viewed by the Court as evidence that the Respondent undertook investigations in some detail and was unable to replicate faults alleged by the Applicant. Effectively, at that point, the Respondent had discharged any obligation on it to remedy (or determine whether it needed to remedy) any breach of section 54 of the ACL.
33.In any case, in no way does the Internal Report support the Applicant’s case.
34.In relation to the tax invoice from Expert Auto Electrics dated 6 April 2023, it is not clear who authored the comments in the invoice, what their qualifications are, or what the basis is for the very brief comments contained therein.
35.That document was clearly not intended to be, and should not be accepted as, expert evidence under GPN-EXPT.
36.Orders were made in these proceedings on 27 March 2023 for the obtaining of expert evidence by the parties, by way of a joint expert. As outlined in the affidavit of Joey Tass sworn on 5 September 2023, and noted by the Court in its decision on security for costs of 28 September 2023, the Applicant refused to meaningfully engage in the process of agreeing on an expert. Orders were then made on 3 July 2023 for the parties to file their own (separate) expert evidence by 31 July 2023. The Applicant filed no such evidence. The Respondent was unable to obtain any expert evidence, because the Applicant refused to allow the Respondent access to the Vehicle.
37.It appears from comments during the proceedings that the Applicant is seeking to rely upon the tax invoices from an Anthony Costello and Expert Auto Electrics as expert evidence as referenced in paragraph 29(c) above. Both documents are 1 page tax invoices and they do not satisfy the requirements of the FCFCA General Rules or GPN-EXPT in so far as they do not specify or provide:
a.The name and address of the expert;
b.An acknowledgement that the expert has read the Harmonised Expert Witness Code of Conduct or GPN-EXPT and agrees to be bound by them;
c.The qualifications of the expert to prepare the report;
d.A declaration that the expert has made all the inquiries which the expert believes are desirable and appropriate and that no matters of significance which the expert regards as relevant have, to the knowledge of the expert, been withheld from the Court;
e.The questions that the expert was asked to address;
f.The report was not signed by the expert nor did the report attach/exhibit any document that documents any instructions given to the expert.
38.Notwithstanding the procedural deficiencies of the abovementioned tax invoices as referenced in paragraph 29(c) above, neither of the documents identify the alleged defects to the Vehicle.
39.The Applicant notified the Court by email on Friday 20 October 2023 that it required “more time to complete the expert report” and requested an extension of 3 days to the existing orders (although the most recent orders of 19 October 2023 did not provide for the filing of any further evidence).
40.Should the Applicant seek leave to rely on “expert evidence” (or any evidence) filed shortly before hearing, the Respondent submits such leave should be denied, on the grounds that the Applicant has had ample time to prepare for hearing, in circumstances where it has repeatedly been put on notice by both the Respondent and the Court of the deficiencies in its evidence filed thus far. The Respondent would be prejudiced in its ability to respond to any such evidence at this late stage.
Remedies sought
41.The Applicant has sought a replacement of the Vehicle with a new vehicle, and compensatory damages for loss or damage.
42.It is not in dispute that the Applicant can obtain an order for damages if it is able to establish loss or damage arising from a breach of consumer guarantee. However, the Applicant has not provided any particulars of loss or damage suffered, to enable the Court to make such an order.
43.In relation to an order for a replacement vehicle, the Respondent’s evidence is that there is no new vehicle of “similar value” available. If the Court is satisfied that the Respondent has breached the guarantee as to acceptable quality, the appropriate order would be for the Respondent to repair any defect identified or refund a part of the purchase price (noting that the Vehicle was purchased over 4 years ago).
44.As the Applicant is not represented by a lawyer, it would not be entitled to a costs order if successful.
Conclusion
45.The Applicant cannot establish that the Vehicle was not, or is not, of acceptable quality in breach of section 54 of the ACL.
46.The Respondent requests this Honourable Court dismiss the Applicant's application with costs.
Respondent’s Closing Submissions
Quoting with approval earlier statements from another decision (which I need not note), the High Court went on in Dasreef, at [37], to confirm:
… the expert's evidence must explain how the field of 'specialised knowledge' in which the witness is expert by reason of 'training, study or experience', and on which the opinion is 'wholly or substantially based', applies to the facts assumed or observed so as to produce the opinion propounded"…
And still further in the same case, at [42] to confirm that:
A failure to demonstrate that an opinion expressed by a witness is based on the witness's specialised knowledge based on training, study or experience is a matter that goes to the admissibility of the evidence, not its weight.
Interestingly in Dasreef, a case that involved some expert evidence regarding the volume of respirable dust to which the Respondent in that case had been exposed, the Court went on to confirm (also at [42]) the finding by the Court of Appeal in New South Wales that
… [the expert’s] opinion on that matter lacked reasoning, the absence of reasoning pointed (in this case, inexorably) to the lack of any sufficient connection between a numerical or quantitative assessment or estimate and relevant specialised knowledge.
Such matters regarding the formal connection or link between the “reasoning” of a “report” and the data relied upon for it, are of particular importance also in the current proceeding.
The High Court in Honeysett v The Queen explained further, relying upon the remarks in Dasreef, regarding the operation of s.79(1) of the Evidence Act.[40] At [21] – [25], the High Court said (internal citations omitted):
[21] Section 76(1) of the Evidence Act states a rule of exclusion: "Evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed." An opinion is an inference drawn from observed and communicable data …
[22] The exception on which the prosecution relied is contained in s.79(1) of the Evidence Act:
"If a person has specialised knowledge based on the person's training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge."
[23]Section 79(1) states two conditions of admissibility: first, the witness must have "specialised knowledge based on the person's training, study or experience" and, secondly, the opinion must be "wholly or substantially based on that knowledge". The first condition directs attention to the existence of an area of "specialised knowledge". "Specialised knowledge" is to be distinguished from matters of "common knowledge". Specialised knowledge is knowledge which is outside that of persons who have not by training, study or experience acquired an understanding of the subject matter. It may be of matters that are not of a scientific or technical kind and a person without any formal qualifications may acquire specialised knowledge by experience. However, the person's training, study or experience must result in the acquisition of knowledge. The Macquarie Dictionary defines "knowledge" as "acquaintance with facts, truths, or principles, as from study or investigation" (emphasis added) and it is in this sense that it is used in s.79(1) The concept is captured in Blackmun J's formulation in Daubert v Merrell Dow Pharmaceuticals Inc: "the word 'knowledge' connotes more than subjective belief or unsupported speculation. ... [It] applies to any body of known facts or to any body of ideas inferred from such facts or accepted as truths on good grounds".
[24] The second condition of admissibility under s.79(1) allows that it will sometimes be difficult to separate from the body of specialised knowledge on which the expert's opinion depends "observations and knowledge of everyday affairs and events". It is sufficient that the opinion is substantially based on specialised knowledge based on training, study or experience. It must be presented in a way that makes it possible for a court to determine that it is so based.
[25] As explained in the joint reasons in Dasreef Pty Ltd v Hawchar,the starting point in determining the admissibility of evidence of opinion is relevance: what is the fact in issue that the party tendering the evidence asserts the opinion proves or assists in proving…
[40] Honeysett v The Queen (2014) 253 CLR 122.
The following comments by the Full Court of the Federal Court of Australia in Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd, are equally important to recall regarding the interplay between s.79(1) of the Act, and s.135 regarding the exclusion of evidence in the exercise of the Court’s general discretion.[41] At [106] – [109], the Full Court said:
[106] A Court should not act upon opinions, unless the prerequisites of s.79 are satisfied. It must be established, on the balance of probabilities, that the witness who gives an opinion has specialised knowledge, that the specialised knowledge is based on the witness’ training, study or experience and that the opinion is wholly or substantially based on that specialised knowledge. Accordingly, there must be evidence explaining both how the opinion stated is said to rest on the specialised knowledge of the witness and how the specialised knowledge is based, wholly or substantially, on the witness’ training, study or experience.
[107] The evidence in chief of a witness giving opinion evidence must explain how the field of specialised knowledge possessed by the witness, by reason of training, study or experience, and on which the opinion is wholly or substantially based, applies to the facts established or assumed, so as to produce the opinion about which evidence is to be given. If those matters are not made explicit in chief, it would normally not be possible for the Court to make a judgment as to whether the prerequisites of s.79 have been satisfied and whether the evidence is in fact admissible.
[108] Further, unless a witness states in his or her evidence in chief the grounds and reasoning that have led to the opinion, the opinion is valueless. Before the Court can assess the value of an opinion, it must know the facts on which it is based. If the opinion is based on irrelevant facts or facts that are clearly not going to be proved, the opinion is likely to be valueless. It should not be for a cross-examiner to endeavour to elicit the facts or assumptions upon which an opinion is expressed, and it would be unfair to leave such matters to the cross-examiner. Except in a straightforward, uncomplicated case, where the facts are admitted or otherwise readily identified, opinion evidence would normally be rejected under s.135 if the facts or assumptions upon which the opinion is based are not expressly stated.
[109] It is for the Court to judge the reliability of, and the weight to be given to, particular evidence. Opinion evidence, like any other evidence, must be comprehensible and reach conclusions that are rationally based. The process of inference or reasoning that leads to conclusions ought to be stated or revealed in a way that enables the conclusions to be tested and a judgment to be made about their reliability and the weight that should be given to them. If not, the opinion evidence would normally be rejected under s.135.
[41]Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (2007) 159 FCR 397.
Courts have always pressed the “common sense” importance of distinguishing between an expert report that relies upon “expert knowledge” and its application to the facts of the matter, as opposed to “advocacy”, which tends to subvert the utility of expert evidence.
Among other regularly cited reasons to exclude evidence under s.135 of the Evidence Act are:[42]
(a)The lack of probative value of the evidence propounded;
(b)Whether or not the person who made the statement [or report] is available [to testify] or not shown to be unavailable;
(c)Whether the conduct of the party adducing the evidence has reduced the capacity of the objecting party to test and challenge the hearsay evidence;
(d)Whether the objecting party has had prior opportunities to test or address the evidence;
(e)Unfair prejudice may arise from the failure of a party to disclose the evidence prior to the hearing or to adduce it prior to re-examination of a witness so as to enable it to be properly considered and responded to by the opponent; and
(f)Non-disclosure of evidence prior to hearing may mean that the opponent does not have an opportunity to test it properly, so that there would be a danger that the evidence might be unfairly prejudicial.
[42] These brief examples are taken from S. Odgers, Uniform Evidence Law (Eighteenth Edition), (Sydney: Lawbook Company, 2023) pp.1320 – 1323. The citations for each proposition are not provided here but are, of course, in the text cited.
A significant part of such considerations is the risk of, and dangers posed by, the potential to ambush an opponent with evidence that has not been disclosed, or not disclosed until immediately prior to the hearing.[43]
[43] See, for example, La Trobe Capital & Mortgage Corp Ltd v Hay Property Consultants Pty Ltd (2011) 190 FCR 299 at [67] and [71] – [72].
In relation to the Australian Consumer Law (“ACL”), I need only note the following.
Although it was set out earlier in these reasons, for ease of reference, I set out again the terms of s.54 of the ACL:
(1)Guarantee that goods are of acceptable quality
If:
(a) a person supplies, in trade or commerce, goods to a consumer; and
(b) the supply does not occur by way of sale by auction;
there is a guarantee that the goods are of acceptable quality.
(2)Definition: acceptable quality
Goods are of acceptable quality if they are as:
(a)fit for all the purposes for which goods of that kind are commonly supplied; and
(b) acceptable in appearance and finish; and
(c) free from defects; and
(d) safe; and
(e) durable;
as a reasonable consumer fully acquainted with the state and condition of the goods (including any hidden defects of the goods), would regard as acceptable having regard to the matters in subsection (3).
(3)Relevant matters
The matters for the purposes of subsection (2) are:
(a) the nature of the goods; and
(b) the price of the goods (if relevant); and
(c)any statements made about the goods on any packaging or label on the goods; and
(d)any representation made about the goods by the supplier or manufacturer of the goods; and
(e) any other relevant circumstances relating to the supply of the goods.
(4) Drawing problems with goods to consumer's attention
If:
(a)goods supplied to a consumer are not of acceptable quality; and
(b)the only reason or reasons why they are not of acceptable quality were specifically drawn to the consumer's attention before the consumer agreed to the supply;
the goods are taken to be of acceptable quality.
(5) Displaying notice with goods
If:
(a) goods are displayed for sale or hire; and
(b)the goods would not be of acceptable quality if they were supplied to a consumer;
the reason or reasons why they are not of acceptable quality are taken, for the purposes of subsection (4), to have been specifically drawn to a consumer's attention if those reasons were disclosed on a written notice that was displayed with the goods and that was transparent.
(6) Abnormal consumer use of goods
Goods do not fail to be of acceptable quality if:
(a)the consumer to whom they are supplied causes them to become of unacceptable quality, or fails to take reasonable steps to prevent them from becoming of unacceptable quality; and
(b) they are damaged by abnormal use.
(7) Examination of goods
Goods do not fail to be of acceptable quality if:
(a)the consumer acquiring the goods examines them before the consumer agrees to the supply of the goods; and
(b)the examination ought reasonably to have revealed that the goods were not of acceptable quality.
First, it is accepted that in order to succeed in a claim based on s.54 of the ACL regarding “merchantable quality”, the onus rests upon the Applicant, who must establish that that there exists a defect or fault in the goods, and that the loss or damage was (or has been) suffered by reason(s) of the goods not being of acceptable quality.[44]
[44] See the Full Federal Court decision in Merck Sharp & Dohme (Australia) Pty Ltd v Peterson (2011) 196 FCR 145.
More recently, in Australian Competition and Consumer Commission v LG Electronics Australia Pty Ltd, the Full Federal Court said, at [26] (quoting with approval the comments of the primary Judge):[45]
… the person claiming a contravention of the ACL consumer guarantee is the one who must prove the contravention and, unless and until a contravention is proved, it is that person who must pay the costs of establishing the existence of the contravention…
[45] Australian Competition and Consumer Commission v LG Electronics Australia Pty Ltd (2018) FCAFC 96.
Secondly, the goods in question must be free from defects and fit for all of the purposes for which they are (or it is) commonly supplied and purchased.[46]
[46] Vautin v BY Winddown Inc (No.4) (2018) 362 ALR 702.
Thirdly, in ACCC v LG Electronics, the Full Court noted, at [2]:
A key fact on which the case of the Australian Competition and Consumer Commission (the ACCC) founders is that the ACCC did not prove that any of the televisions were not of acceptable quality in breach of the consumer guarantee of acceptable quality in s 54 of the ACL. The ACCC tried to prove this but failed for the reasons the primary judge gave: Australian Competition and Consumer Commission v LG Electronics Australia Pty Ltd [2017] FCA 1047 at [167] – [168].
The LG Electronics case also stands for the general proposition that a consumer is required to return goods for assessment to determine the existence and nature of the alleged fault. As discussed at length in what follows, the failure of the Applicant in the present matter to consent to the appointment of an independent expert deprived the Respondent and the Court of the benefit of an independent assessment of the vehicle and the faults alleged by the Applicant. But as the Full Court’s decision in LG Electronics (and other authorities referred to below, such as Australian Competition and Consumer Commission v Mazda Australia Pty Ltd) also makes plain, by not making the vehicle available for inspection even by the Respondent, the Applicant thwarted any attempt by the Respondent to examine and, if appropriate, to repair any such fault. Thus, the Applicant’s actions in not making the vehicle available had two adverse consequences for his claim of his own making: (i) inability to repair the vehicle, if appropriate, by the Respondent, and (ii) independent assessment to ensure that the best evidence was available to the Court to determine the existence, accuracy (one way or the other), extent, and detail, of the Applicant’s otherwise highly generalised claims.
Consideration & disposition
At [72] of these reasons, I stated that in HG v The Queen, at [39], Chief Justice Gleeson said, with characteristic brevity:[47]
An expert whose opinion is sought to be tendered should differentiate between the assumed facts upon which the opinion is based, and the opinion in question.
[47] HG v The Queen (1999) 197 CLR 414.
Applying these basal principles, and those set out in more detail by the High Court in Dasreef, also set out earlier in these reasons, I note the following in relation to the two Tax Invoices provided by the Applicant and admitted as Exhibits A1 (Tax Invoice from Auto Electrics/Mr Kiernan) and A2 (Tax Invoice from Anthony Costello Automotive). The Tax Invoice of Mr Costello was annexed to the Applicant’s immense Affidavit, filed 9th July 2023, at p.45; Mr Kiernan’s Tax Invoice was annexed at p.58 of the same Affidavit. Mr Costello was not available for cross examination; he never gave any oral evidence. I recall too that Mr Costello’s Tax Invoice is dated “2020”; accordingly, its relevant to the current claim is, at best, highly marginal in any event.
The Respondent filed Submissions on 31st August 2023 specifically in relation to “expert evidence”. Those submissions are set out earlier in these reasons.
The flaws in relation to the “experts” relied upon by the Applicant are significant and fatal to his claim. Summarily stated, the flaws in the Applicant’s expert evidence are as follows.
First, as noted by the Respondent in its interlocutory submissions regarding compliance with expert reports, at pars.4-6, basic details were completely absent from both “Tax Invoices.” The title alone of each document relied upon by the Applicant further belies the inadequacy of those documents; neither Tax Invoice purports to be a “report”. And neither document purports to be, on its face or otherwise, by an “expert.” As well, as noted by the Respondent in submissions, basic and necessary detail required under the Expert Evidence Practice Note issued by the Federal Court of Australia on 25th October 2016, is completely absent from each document. For example, there is no:
(1)Acknowledgement by either Mr Costello or Mr Kiernan that they have read the Practice Note and have agreed to be bound by it (pars.4.4 and 5.2(a) of that Practice Note);
(2)Identification of the questions the expert was asked to address (par.5.2(b));
(3)Signature or copies of documents provided to the expert(s) that record instructions given to them (par.5.2(c)).
Earlier in these reasons, the Court outlined various attempts to direct the Applicant to the importance of obtaining an independent expert report, in accordance with par.6 of the Practice Note. As well, the Applicant failed to comply with Orders of the Court in relation to obtaining an expert report.
Annexure A to the Practice Note is the Harmonised Expert Witness Code. A number of the matters just recorded from the Practice Note are repeated in the Witness Code (e.g. details that are required to be included in an expert report, such as the name and address of the expert, acknowledgment that the expert has read the Harmonised Expert Witness Code of Conduct and has agreed to be bound by it, details of the qualifications of the expert, etc). This reinforcement of formal and evidentiary requirements highlights the centrality of detail, accuracy and conformity with standard practice regarding expert reports upon which it is intended by one or other party to rely at a final hearing. The requirements also highlight the central importance of the independence and detail expected to be found in expert reports. Very unfortunately, so little of it was found in the Tax Invoices relied upon by the Applicant as his “expert reports” in this matter.
The Tax Invoices relied upon by the Applicant basically fail in almost every relevant respect in failing to comply with the requirements spelt out in the Practice Note, and in accordance with the principles set out in the authorities referred to. Some of those most basic steps and requirements are set out above, including in particular no (or significantly limited) information regarding what questions the Applicant asked the “experts” to address, and what documents were provided by the Applicant to them.
Although the Applicant annexed the two Tax Invoices to his trial Affidavit of 9th June 2023, there was almost no opportunity for the Respondent to check any of the scant information in those documents. Indeed, in the three paragraphs that comprise this Affidavit, there is no mention of Mr Kiernan’s Tax Invoice at all, let alone as the Applicant’s “expert.” Thus, the Respondent (and the Court) had no notice from the Applicant that either Tax Invoice was going to be relied upon as an expert report until the Applicant’s submissions of 31st August 2023 indicating that Mr Kiernan was his relevant expert. Mr Costello was never referred to as an expert in any of the Applicant’s documentation. At the trial, there was no mention that Mr Costello would give evidence. In those circumstances, I discount the Tax Invoice of Mr Costello, in addition to the multiple other deficiencies already noted. It is also unclear from Mr Costello’s Tax Invoice what the relevant “expert opinion’ is.
For ease of reference, I note again some of the statements of principle by the High Court regarding expert evidence. For example, in Dasreef, at [37], the Court confirmed that:
… the expert's evidence must explain how the field of 'specialised knowledge' in which the witness is expert by reason of 'training, study or experience', and on which the opinion is 'wholly or substantially based', applies to the facts assumed or observed so as to produce the opinion propounded"…
In the same case, at [42], the Court also noted that:[48]
A failure to demonstrate that an opinion expressed by a witness is based on the witness's specialised knowledge based on training, study or experience is a matter that goes to the admissibility of the evidence, not its weight.
[48] See also the High Court’s comments in Honeysett at [25], and by the Full Federal Court in Darrell Lea at [108], both noted above.
Matters regarding “weight” and probative value of evidence are usually considered under the terms of s.135 of the Evidence Act, which may lead to evidence being excluded.
Neither Mr Kiernan, and still less Mr Costello, made clear (doubtless because they were not asked or provided with relevant information regarding “expert reports”) how their respective, generally unstated expertise applied to the facts assumed or observed to produce the “opinion here. Indeed, especially in the case of Mr Kiernan his invoice simply noted a number of matters without explaining them. I generally accept that Mr Kiernan outlined his experience in the automotive industry but somewhat more limited expertise regarding Mercedes-Benz vehicles of the kind in issue here.
In short: (a) the Tax Invoices are seriously deficient as so-called expert reports. They significantly fail to comply with the Practice Note issued by the Federal Court of Australia regarding experts and their reports; (b) the Tax Invoices seriously fail to identify the material relied upon to make the limited comments in those documents; and (c) the Tax Invoices (and the limited oral evidence of Mr Kiernan) fail to satisfy the requirements regarding expert evidence set out above from the High Court decisions in Dasreef, Honeysett and the Full Federal Court decision in Cadbury Schweppes. Among other things, the facts on which the opinion of Mr Kiernan, as expressed in his Tax Invoice, was based were not made clear to the Court, nor were they readily identified. There was therefore no capacity for the Respondent (or Court) to test the reliability of Mr Kiernan’s conclusions. Accordingly, and in addition to the other significant short-comings of the Tax Invoices as “expert reports”, under s.135 of the Evidence Act, the probative value of Mr Kiernan’s Tax Invoice “Report” was, at best, marginal.
It should also be recalled that the Applicant’s primary trial Affidavit, voluminous as it is in excess of 500 pages, contained only 3 short paragraphs in the body of it, which are set out earlier in these reasons. Those three paragraphs simply make a range of assertions about the vehicle and its alleged deficiencies. Many of them are historical. I also note again that the Applicant did not give any oral evidence at the trial. Ultimately, the Court was left with (a) a three paragraph Affidavit but with voluminous but unexplained annexures (including videos in two USBs), (b) two Tax Invoices as the Applicant’s “expert reports”, and (c) the limited oral evidence of Mr Kiernan alone. It follows from the deficiencies in the Applicant’s limited evidence, especially the extremely limited non-independent “expert evidence” of Mr Kiernan, that there is ultimately precious little evidence to support the Applicant’s case. Indeed, so deficient is his evidence that he has, in my view, clearly not discharged the onus he bears to make out the claim he makes under s.54 of the ACL.
There may be, and clearly have been, various problems of one kind or another with the vehicle. According to the “stored” records displayed by the vehicle, many if not most of them seem to be historical, as the evidence of Mr Browne confirmed. Even Mr Kiernan questioned the extent of the “issues” because of the flat battery and how many of the “stored fault” codes disappeared after it had been somewhat re-charged. The issues were (and maybe still are) matters of detail and degree. Bare assertion by the Applicant, as was mostly the case throughout the proceeding, assisted the Court not one jot. Asking (or usually demanding) that the Court draw inferences from various unexplained photographs and screen shots of a dashboard at different times, also assisted the Applicant not one bit. To state again: an independent expert would have provided up to date and clear evidence about what, if any, issues had been or remained with the vehicle. The lack of that evidence, especially in the face of the Respondent’s mechanics being regularly unable to replicate the faults complained of (now of some time ago), effectively crippled his own case.
Notwithstanding the fact that both Tax Invoices were admitted into evidence, plainly there were issues of admissibility, notably because of the multiple failures to comply with the formal and other evidentiary requirements set out in the Practice Note and Expert Witness Code. Although not formally argued, it is plainly open to withdraw the admission of those documents. However, because it was not so argued, I will not take that course.
Although considered or touched upon briefly above, for completeness, I should note that another issue that does arise directly from the multiple deficiencies in the Tax Invoices is the prejudice to the Respondent. Earlier in the discussion of s.135 of the Evidence Act, I noted the following matters that can impact upon the Court’s exercise of discretion to exclude evidence, namely:
(a)The lack of probative value of the evidence propounded;
(b)Whether or not the person who made the statement [or report] is available [to testify] or not shown to be unavailable;
(c)Whether the conduct of the party adducing the evidence has reduced the capacity of the objecting party to test and challenge the hearsay evidence.
In my view, the matters referred to in pars.(a) and (c) are most important and relevant here. Overall, the evidence of Mr Kiernan and Mr Costello is of extremely limited utility such that its probative value is, at best, marginal if not almost totally deficient.
The most glaring and egregious issue, however, relates to the conduct of the Applicant in refusing to make the vehicle available for inspection such that in independent expert could assess it and provide a report. The absence of such an independent report was and is fatal to the Applicant’s case. His conduct also made it impossible for the Respondent to arrange for an independent expert to inspect and report on the vehicle. The Applicant’s conduct made it impossible for the Respondent to challenge more specifically and directly the Applicant’s claims.
Secondly, as already noted, the Respondent repeatedly sought (supported by Court Orders) the appointment of an independent expert. This would have resulted in an independent report for the parties and the Court. This course was thwarted on every occasion by the Applicant. In Australian Competition and Consumer Commission v Mazda Australia Pty Ltd, at [78], O’Callaghan J in the Federal Court of Australia said (emphasis added):[49]
… In the end, not much turned on the evidence of Mr George or Professor Watson, and no party suggested that it did. That was so primarily because the experts had been retained at a time when the ACCC was pressing a case that each of the vehicles had at various points in time in fact suffered a “major failure” within the meaning of the consumer guarantee provisions of the ACL. None of the expert witnesses had the benefit of inspecting the vehicles.
[49] Australian Competition and Consumer Commission v Mazda Australia Pty Ltd (2021) 158 ACSR 31.
The same general comment applies here because no independent expert had the opportunity to inspect the vehicle. In consequence, no independent report was available to the parties or the Court. Likewise, the Respondent could not examine the vehicle to check any of the alleged faults (as it had done a various occasions previously) and, as may be appropriate, repair the vehicle (as also had been done previously).
The Applicant’s conduct was so egregious, and even contrary to his own interests, throughout the proceeding, that the limited evidence from his “expert”, Mr Kiernan, should be and will be, excluded. But even if it remained, it did not really assist the Applicant in any event, for reasons given earlier regarding the somewhat equivocal evidence of Mr Kiernan, who certainly seemed to suggest that repair of the vehicle could occur, while the Applicant consistently claimed that the vehicle was irreparable. Put another way, even if I am wrong to exclude Mr Kiernan’s limited evidence under s.135 of the Evidence Act, and in turn to let it remain before the Court, it would not, and could not, affect the result because the Applicant’s evidence even with that from Mr Kiernan was and is so poor, together with the absence of independent expert evidence to clarify (one way or the other) the claims of defect, there is simply insufficient evidence to support the Applicant’s claims. It follows that the Applicant has not discharged the onus he bears to establish the claims under s.54 of the ACL.
In addition to what has already been stated, I note the following more generally.
In his final submissions (par.3), the Applicant stated:
… The Applicant agrees that Mercedes Benz equipment should be used to properly diagnose defects, and that the business records of Mercedes Benz Australia/Pacific and its agents, Peter Warren Automotive and Mercedes Benz Canberra are admitted into evidence.
Given that (a) the records provided by the Respondent show no issues with the vehicle, or (b) those that had been identified to have been fixed, (c) any remediation work was quite some time ago, and that (d) neither of the Applicant’s late-breaking “reports” used “Mercedes-Benz equipment”, on these grounds alone, and the apparent assumption by the Applicant that his evidence is essentially flawless and self-evident, the claim cannot succeed. Apart from his assertions, the Applicant’s evidence is simply insufficient and flawed to sustain his claims under s.54 of the ACL. There are, however, multiple other obstacles to the Application succeeding which, however repetitious, I recall and summarise as follows.
First, in my view, the regular and unqualified attention by both Mercedes-Benz dealerships to the issues raised by the Applicant, and over a significant period of time, was, by any measure, diligent and attentive to the issues raised. Regularly, the issues raised by the Applicant were not able to be replicated when examined by either of the repair/service departments of the Respondent. Further, quite a number of the issues raised by the Applicant, even to a lay observer, would reasonably be categorised as minor (e.g. “front radar dirty message”, “rough gear changes while in sports mode” and “left front sensor going off with nothing around”). True it is that everyone would like any vehicle purchased to work and perform perfectly, particularly if is it (such as the present vehicle) one of high specification. However, the number of times that the records of the Respondent note that, in effect there was “nothing to see here” precisely because there was, in fact, nothing to be seen of the kind alleged, as a response to the contentions by the Applicant, almost made the Applicant appear to be someone looking for issues even when there were none genuinely to be found.
Secondly, although commented on almost ad nauseam already, more significantly, regarding matters of evidence, on the one hand, a document like the Respondent’s Exhibit MB1, with its clear detail and response, and the completely generalised documents such as the Applicant’s Tax Invoice from Mr Kiernan (Exhibit A1), on the other hand, starkly highlighted the enormous evidentiary lacunae in the Applicant’s case. His claims under the ACL were highly generalised. His evidence was likewise significantly lacking in relevant detail. And often, such as his unexplained screen shots driving at speed, effectively required the Court to draw wide but completely unspecified inferences from very doubtful information, which the Court cannot, and will not, undertake.
Further, in very difficult circumstances (e.g. the Applicant’s refusal to make the vehicle available for inspection by an independent expert; the Applicant’s constant refusal to engage an independent expert, which was also contrary to Court Orders) the Respondent provided the best evidence it could. That evidence from Mr Browne and Exhibit MB1, assisted the Court. The generalised evidence and wide-ranging general assertions of the Applicant did not. More often than not, the Applicant seemed to assume (or presume) that the propositions of very significant and ongoing defects in the vehicle were of such proportion that his claims were self-evidently correct. They were not. Any and every adverse claim or inference of relevant defect or failure to bring his claims regarding the vehicle within the terms of s.54 of the ACL was not made out. When seen through the clear evidence, necessarily limited as it was, from the Respondent, the Applicant’s evidence, fell very far short of establishing the claims he made against the Respondent.
To compound the problems with the Applicant’s evidence, as noted already multiple times, there was no independent expert evidence. His actions, outlined earlier in these reasons, thwarted obtaining that important evidence. Such a report very quickly and very clearly would have established, one way or the other, the veracity and significance of the claims (and denials) by each side. By being so utterly obdurate in the preparation of the matter, especially in refusing the make the vehicle available for further inspection, and particularly in not agreeing to an independent expert and the preparation of a report from such a person (especially in the face of Orders and directions of the Court), the Applicant has, to a large degree, ensured that his impoverished evidence and therefore his claim that there was a breach of s.54 of the ACL must fail. Moreover, failing to comply with Orders of the Court, of itself, could have led to the dismissal of the proceeding in any event.[50] Such an argument was not, however, run by anyone, or suggested by the Court, and I therefore make no Orders predicated upon the repeated breach of Orders.
[50] As noted earlier, see r.13.04 and 13.05 of this Court’s General Federal Law Rules (cited in full above).
I have also earlier noted the repeated efforts of the Respondent to obtain agreement from the Applicant regarding the appointment of an independent expert, all to no avail. As recorded above, the Affidavit of Mr Tass on behalf of the Respondent documents these multiple, unsuccessful attempts.
In effect and in fact, legally and factually, the Applicant has thwarted his own case and doomed it to fail. He cannot claim multiple defects in the vehicle but at the same time refuse to let it be examined by an expert so that an independent report can be prepared and provided to all parties, and particularly the Court. It might even be inferred that by not making the vehicle available to an independent expert the Applicant had something to hide. No such argument, however, was ever run. Nevertheless, his procedural and evidentiary hubris has ensured the demise of his claim. There is a singular lack of reliable evidence, for which the Applicant bore the onus to provide, to sustain his claim under s.54 of the ACL. The Applicant ran an “all or nothing case.” This was a very high-risk strategy. The lack of detail in his evidence, and conversely, the highly generalised claims of the Applicant, and notably without any proper assessment, let alone independent assessment of his claims, meant that it was doomed to fail. It must be dismissed with costs, either as agreed or taxed.
In addition to these reasons, I accept the submissions of the Respondent in their entirety.
I certify that the preceding one hundred and twenty-two (122) numbered paragraphs are a true copy of the Reasons for Judgment of Judge W J Neville. Associate:
Dated: 28 February 2024
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