Schmutter v James Frizelle's Automotive Group Pty Ltd t/as Gold Coast Volkswagen
[2013] QCATA 316
•11 November 2013
| CITATION: | Schmutter v James Frizelle’s Automotive Group Pty Ltd t/as Gold Coast Volkswagen [2013] QCATA 316 |
| PARTIES: | Rick Allen Schmutter (Applicant) |
| v | |
| James Frizelle’s Automotive Group Pty Ltd t/as Gold Coast Volkswagen (Respondent) |
| APPLICATION NUMBER: | APL354-13 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member Stilgoe OAM |
| DELIVERED ON: | 11 November 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal refused |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL - MINOR CIVIL DISPUTE – whether grounds for leave to appeal Dearman v Dearman (1908) 7 CLR 549 Chambers v Jobling (1986) 7 NSWLR 1 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 |
APPEARANCES and REPRESENTATION (if any):
The appeal tribunal heard and determined this matter on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.
REASONS FOR DECISION
Mr Schmutter bought a Volkswagen Polo from Gold Coast Volkswagen in April 2013. He was not happy with the car, as he thought that it pulled excessively to the left and consumed too much oil. He filed an application in the tribunal asking for the faults in his car to be fixed.
At the hearing, Mr Schmutter wanted to return the car and get his money back. Two Justices of the Peace, sitting in the minor civil disputes jurisdiction of the tribunal, dismissed his claim.
Mr Schmutter wants to appeal that decision. He says that the learned JPs erred in dismissing his claim because he test drove the car before he bought it. He says that the car is still defective, and he has new evidence to prove that. He says that the learned JPs did not consider his rights under the Property Agents and Motor Dealers Act 2000 (Qld).
The appeals tribunal will only accept fresh evidence if it was not reasonably available at the time the proceeding was heard and determined[1]. Ordinarily, an applicant for leave to adduce such evidence must satisfy three tests. Could Mr Schmutter have obtained the evidence with reasonable diligence for use at the trial? If allowed, would the evidence probably have an important impact on the result of the case? Is the evidence credible?[2]
[1] QCAT Act ss 137, 138.
[2] Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 at 408.
Mr Schmutter wants the appeals tribunal to consider a statutory declaration from Ms Smith. She swears that she test drove a similar model Polo in the Northern Territory which did not pull to the left. She also swears to a conversation with the salesman in which he told her that there were no issues (of pulling to the left) with that car. Ms Smith’s evidence does not assist Mr Schmutter. She is not an expert in the driving dynamics of Polos. Her conversation with the salesman relates only to that car and has not been tested by cross examination. The evidence should not be admitted.
Mr Schmutter has also filed a statutory declaration from Mr Smith. He has owned a Polo, driven a Polo, been a passenger in a Polo and talked to other Polo drivers. Unhelpfully, he draws no conclusions from this information. Mr Smith also swears that he has observed a detailed technicians report and video of Mr Schmutter’s car. Mr Smith does not identify the technicians’ report in a way that assists the tribunal. The video is not before the tribunal. Even if those two pieces of evidence were available, once again, Mr Smith has not drawn any conclusions. He states he is an industrial designer but he does not explain how this gives him expertise to comment on the particular properties of Mr Schmutter’s car. The evidence should not be admitted.
Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary. The question whether or not leave to appeal should be granted is usually addressed according to established principles. Is there a reasonably arguable case of error in the primary decision?[3] Is there a reasonable prospect that the applicant will obtain substantive relief?[4] Is leave necessary to correct a substantial injustice caused by some error?[5] Is there a question of general importance upon which further argument, and a decision of the appeals tribunal, would be to the public advantage?[6]
[3] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[4] Cachia v Grech [2009] NSWCA 232 at 2.
[5] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[6]Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 at 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, 580.
The learned JPs correctly identified the provisions of the Australian Consumer Law that applied. They found that the car was fit for the purpose, given the reports from Gold Coast Volkswagen and Wheel and Tyre Warehouse. The evidence can support their findings. The fact that Mr Schmutter continues to disagree is not a ground for appeal.
The learned JPs also found that Mr Schmutter examined the car before he bought it and that examination ought reasonably to have revealed the car’s propensity to pull to the left. Again, the evidence can support that finding. Mr Schmutter argues that he did not test drive the car at 100 km per hour and, therefore, did not have an opportunity to discover the defect. The learned JPs found that he had the opportunity to test drive the car at 100 km per hour. Further, although the learned JPs did not rely on this point, the evidence suggests that the car pulled to the left on braking. Even if Mr Schmutter did not drive the car down the highway before purchase, he must have braked, and so had the opportunity to experience the condition. I see no compelling reason to depart from the learned JPs’s finding.
The learned JPs cannot be criticised in failing to consider points of law that were not raised at the hearing. Mr Schmutter is correct in submitting that, under s 322 of the Property Agents and Motor Dealers Act 2000, Gold Coast Volkswagen had to give him notice of whether it accepted the warranty claim within five business days of receiving the claim. He is also correct in submitting that, under s 323, Gold Coast Volkswagen then had 14 days to fix the defect.
Mr Schmutter did not apply to the tribunal under s 324(2) of the Act. If he had, the tribunal could have ordered, as it effectively did, that the “defect” was not a defect under the statutory warranty.[7] The learned JPs could have made orders about the repair of the defect[8] but, as I have already observed, the learned JPs found that the car was not defective. Therefore, the Property Agents and Motor Dealers Act 2000 does assist Mr Schmutter.
[7] Property Agents and Motor Dealers Act 2000 s 324(3)(a).
[8] Ibid s 324(4).
There is one last problem with Mr Schmutter’s application if he really wanted to return the car and have Gold Coast Volkswagen refund the purchase price. Mr Schmutter bought the car for $36,500, well over the learned JPs’ jurisdictional limit of $5,000. They could not have heard the application for a return of the car and a refund of the purchase price.
There is no question of general importance that should be determined by the appeals tribunal. There is no reasonably arguable case that the tribunal was in error. There is no reasonable prospect of substantive relief on appeal. There is no evidence that a substantial injustice will result if leave is not granted. Leave to appeal should be refused.
0