Plaintiff v Defendant

3 Before the Small Claims Tribunal neither the claimant nor the respondent was represented. Ms Van Susteren presented her own case, as is customary in that tribunal, and the company, Werribee Tyrepower, was represented by Mr Paul Joannou and Mr Chris Joannou.

4 The issue which is before me is whether the decision of the tribunal should be set aside for a want of natural justice. The particular want of natural justice suggested is that the tribunal received two letters offered on behalf of Tyrepower and that the claimant, Ms Van Susteren, was not given the opportunity to test the accuracy of their content by cross-examination, nor were the authors of the documents produced to verify, on oath, if that be necessary, their statements.

5 It is common ground that the Small Claims Tribunal has a considerable degree of latitude in the conduct of its proceedings. It is required by section 98 of the VCAT Act to proceed with as little formality or technicality as is appropriate, and evidence of an informal nature may be received. Section 102 also provides a broad discretion as to the way the tribunal should be conducted. I am mindful too of the fact that cases before the tribunal are usually represented by the litigants themselves, without representation, so that the task of the tribunal is not only to act as a judge and to sit back and hear the evidence but, to a larger extent than might normally be the case, to actually identify what the issues are, to encourage the parties to put forward evidence which is relevant to those issues, and, in the case of contentious issues, to be given every opportunity to challenge them.

6 Accordingly, counsel for the respondent, in his written submissions, asserts as a proposition, which I accept, that it would be contrary to the rules of natural justice to allow a letter to be the basis of a crucial finding of fact without the opposing party having the opportunity to cross-examine the maker of the statement or to clarify its contents. There is of course an obligation on the Small Claims Tribunal, however informal its procedures may be, to respect the rules of natural justice. Accepting that the rules of natural justice will vary depending upon the nature of the hearing, the fact remains that, if it concerns a crucial matter or a vital issue, then the party should be given the opportunity to know, to test and to challenge evidence which is put against that party. So far, there is no difficulty.

7 This gives rise to the need for a careful examination of what is the precise materiality of content of the two documents.

8 Before I undertake this task, I should mention that my concern is not whether the tribunal is right or wrong but whether the tribunal followed the correct procedures in this case. The tribunal's task is to determine the case; the task of this court is to ensure the determination is achieved in accordance with the rules, in this case, the rules of natural justice.

9 The evidence before the tribunal was that Ms Van Susteren spoke to the salesman at Tyrepower before the purchase. It may have been Mr Joannou. Her enquiry was originally for a different type of wheels, and according to her evidence, which appears at page 8 of the transcript, he recommended or stated to her that he thought that the 20 inch wheels would fit. She says she inquired whether it would make the ride rougher, and he responded,

You might have to put a different suspension on, but you wouldn't know until the wheels came.

10 She waited six weeks for the wheels to be delivered. She then told the tribunal, at the bottom of page 8 of the transcript,

He did mention to me that I may have to change the suspension to get them on but he wasn't sure. He said he wouldn't know until the wheels actually came in and he put them on the car and I said, "Yes, okay", and I said - but I think I asked him again, "Will a different suspension make the car rougher?" These are his words, he said, "It will make it a bit of a difference but it won't be that noticeable." That's what he said, so on that assurance I decided to go ahead.

11 It seems to me from my helpful discussion with counsel for the appellant, that this was the principal issue in this case - did the purchaser represent to the vendor that the purpose for which the wheels and suspension were required was to provide a ride which was not rougher. The associated question then was whether or not the vendor assumed a responsibility, which is now contended for, that the wheels would not make the ride rougher.

12 The issue therefore was not whether the wheels or the suspension were merchantable, not whether they met specifications for those type of product; but rather whether there was a representation as to their rideability performance in terms of the purchaser's desire to use the car.

13 The member of the tribunal clearly identified this as the principal issue in the case. In my view she put her finger on the very point when, at transcript page 20, she said, "What is really significant to me is the representations, if any, that were made." and later on at page 42 in a long passage, she said this. After referring to what she described as competing principles she addressed Ms van Susteren :

One is that you are a free agent as a buyer. No-one's twisting your arm or holding it. You make the decisions and if you make a poor decision, which on reflection you wouldn't have made, that's really your responsibility. But if you make a decision relying upon a representation that's not qualified in any way and turns out that representation is inaccurate or false, then you have a case. But the evidence that has come out so far, even from what you have said, is that you were never given an unqualified statement about the ride. You were never given an unqualified statement about whether you would need suspension or not. You were told you might. You were told you might feel a difference and you decided to go ahead, and the assessment is.

14 And then after an interjection, the member went on,

But you, as a free agent, at that point, said, "Well, you know, I've got to think about it. That's what's really important to me ... And I guess most people driving one of those Monaros with the, you know, one of those performance vehicles, they're not about comfort. The Commodore Calais is about comfort or that sort of vehicle, you know, a Statesman, or something like that, but a performance vehicle like this is not about comfort.

15 I now turn to the documents that were put in evidence. The first, exhibit F, is a statement from Mark Callan, who is the manager of Pedders Suspension, Hoppers Crossing. It seems that this is the company that sold to Werribee Tyrepower, the suspension in question. Mr Callan sets out some background but the relevant part is this,

After the job was completed at Tyrepower Werribee, I received a phone call from the customer in question complaining that the suspension rode very hard. I asked her to bring the vehicle at Pedders Suspension ... so we could inspect the vehicle also on behalf of Tyrepower Werribee. When the vehicle was brought into us at Pedders, the vehicle was test driven down Industrial Avenue, Hoppers Crossing, where road works were currently in progress. She complained of a very hard ride over an area where the road was dug out and was being repaired. On the completion of the test drive, the vehicle was put on our drive on shock test machine. After the test was completed, the results were compared with numerous other units that had been tested and the results were perfect.

I also drove this vehicle personally and found there were no problems with the ride or handling of this vehicle.

17 So what he was concerned with there was not whether a representation was made, but rather whether or not the suspension system was harder than was appropriate for such a system. This was not an issue.

18 The second document, which is exhibit G, is signed by a man called Adrian Gulialmino, who wrote about having purchased a set of custom 20 inch wheels which were fitted by Tyrepower Werribee. These were, of course, not the wheels that we are currently concerned with. All he says is he was very happy with the service he received from Tyrepower Werribee. Nothing in that statement really bears upon the crucial issue in this case.

19 It follows from this that the two complaints that have been made about the procedure adopted by the Small Claims Tribunal do not disclose that material which was crucial to the determination of the case, was placed before the court in either of these documents. The failure of the tribunal to offer to Ms Van Susteren the opportunity to cross-examine and test these statements is, therefore, not such a failure as amounts to a want of natural justice for which the determination should be set aside.

21 I will make the usual order as to costs. The successful party in this court prime facie has its costs and that order should be made. There is no reason in this case to depart from that.

22 The orders therefore will be that the proceeding be dismissed. The appellant pay the costs of the respondent including reserve costs.