Temple v AMR Motors Pty Limited

NCAT Appeal Panel|2017-07-05

REASONS FOR DECISION

On 15 December 2010, the Appellants agreed to purchase a new Mazda 3 passenger sedan from the First Respondent (AMR). That Respondent was a motor dealer who, at the time of the transaction, was registered under the provisions of the Motor Dealers Act 1974 (NSW) (now repealed). It carried on business as a motor dealer in new Mazda motor vehicles that it both sold and serviced.
By an application filed in the Tribunal on 17 February 2015, the Appellants sought an Order that the First Respondent pay to them the sum of $28,000, being the price paid for the vehicle in December 2010. They claimed that the vehicle's engine had an inherent fault that caused fuel consumption above their expectation and that the fault claimed by them also resulted in the necessity to change engine oil more frequently than would be expected in a vehicle of that kind. That had the consequence, so they claimed, that higher maintenance costs were being incurred in respect of the vehicle. Not only did they contend that these additional costs were a consequence of matters not disclosed to them when they purchased the vehicle, they contended that the fault they identified increased the likelihood of catastrophic engine failure.
At some point in time after the proceedings were commenced, Mazda Australia Pty Limited (Mazda) was joined as a Second Respondent. Although the process by which that joinder was achieved is not before us, as will later appear, the rationale for that joinder is readily apparent. Relevantly, both Respondents have denied liability for payment of the sum claimed by the Appellants or for any sum due to them by reason of the claimed fault in the vehicle they purchased in December 2010.
On 22 March 2017, the claim made by the Appellants was dismissed by a single Member, exercising the Tribunal's jurisdiction. The Appellants have now sought to exercise the right of appeal afforded by s 80 of the Civil and Administrative Tribunal Act 2013 (NSW) (the Tribunal Act) to appeal from that decision.

Background

The vehicle purchased by the Appellants on 15 December 2010 was for their personal use. The First Respondent does not dispute that it sold the vehicle to the Appellants while the Second Respondent does not dispute that it manufactured the vehicle and imported it to Australia for the purpose of sale.
The vehicle was registered on the date of sale and was sold with a Mazda three-year warranty, expiring on 15 December 2013.
At the time of purchase, the vehicle had attached to it a label reflecting its potential fuel consumption. That label was affixed in accordance with the Green Vehicle Guide (the Fuel Guide) published by the Australian Government. The label affixed to the vehicle showed the following figures: Combined 5.7L/100km Urban: 7L/100km Extra-urban: 5L/100km The label also drew attention to the Fuel Guide.
The Fuel Guide was in evidence before the Member. Relevantly, it states: "The label indicates the vehicle's fuel consumption in litres of fuel per 100 kilometres (L/100km)… The results are based on a standard test procedure so consumers can reliably compare the performance of different models under the same test conditions. … However, while the label enables you to compare vehicles with confidence, no single test can simulate all 'real world' driving conditions. Actual on-road fuel consumption will depend on factors such as traffic conditions, vehicle condition and load, and how you drive. The label displays three fuel consumption numbers - 'combined', 'urban' and 'extra-urban'… The label highlights the higher fuel consumption of many vehicles operating in urban conditions… While the 'extra-urban' component is not a traditional 'highway cycle', it is a high-speed test that may provide a better indication of freeway or highway driving. Of course, as noted above, no test can simulate all 'real world' conditions and the primary aim of the new label is still to provide a common basis for comparison of individual vehicle models." The Fuel Guide continues by indicating that the fuel consumption that appears on the label is obtained for the vehicle "from a standard dynamometer test conducted under laboratory conditions", being a test specified in United Nation Regulations setting out procedures for determining fuel consumption.
The diesel engine fitted to the Appellants' vehicle was designed or calibrated to meet Australian pollution standards by utilising a methodology described as "Regeneration", a process "managed" by the engine's management system. A diesel particulate filter (DPF) is fitted to the vehicle's exhaust system in order to capture particulate matter that is the residue from the diesel ignition system. The particulate matter is described by the Member as being burnt off in the Regeneration process when it reaches a predetermined level. There are sensors in the DPF that activates the Regeneration process when the particulate matter reaches that predetermined level. When that process is activated, diesel fuel is fed into the exhaust on the exhaust stroke of the engine, thereby causing fuel consumption to increase during the course of the active Regeneration process. Prior to the requirement that emission controls be fitted to diesel engines, the particulate matter was discharged to air in an unburned state through the exhaust system.
At [25] of the Member's Reasons, he records part of the process in the following terms: [25] The engine has an oil sump which holds oil and also collects unused diesel which has not been used in the engine ignition process. Describing the process in a non-technical way: (1) Oil circulates around the engine from the sump and returns to the sump, and as it circulates it lubricates the moving parts to reduce wear. This includes lubrication of the pistons and piston rings as they move up and down in the cylinders. The oil also passes through an oil filter which removes particles accumulating in the oil; (2) Diesel fuel is injected into each engine cylinder and unused diesel comes past the engine piston rings and collects in the oil sump where it mixes with the oil.
The engine has a dipstick for measuring the level of fluid (oil and diesel) in the oil sump. That level rises as unburned diesel accumulates.
There are two processes that occur relevant to the complaints made by the Appellants and upon which they have founded their proceedings. The fact that these processes occur is not controversial. First, when the burn-off process is triggered, fuel consumption is elevated, a phenomenon described by the Appellants as "fuel surge". The second element involves the mixing of diesel fuel with lubricating oil during the Regeneration process.
The Appellants complain that this process, its consequence upon fuel consumption as well as the need for more frequent oil change than would take place in the ordinary service intervals of the vehicle was not disclosed to them when they purchased the vehicle. They also complain that the process together with the consequence they claim to result from it is not disclosed in the owner's manual provided with the vehicle at the time of purchase.
Over the years since acquiring the vehicle, the Appellants have taken it to several Mazda service centres and automotive repairers, including the First Respondent, reporting high fuel consumption and engine oil use. None of those service centres nor repairers found fault with the vehicle on those occasions. At the request of the Appellants, the vehicle was returned to the Second Respondent for examination and testing in light of the Appellants' complaints. Testing by the Second Respondent did not reveal any engine fault, with both fuel consumption and oil/diesel mixing "within specification" and inconsistent with the claims of the Appellants. When tested by the Second Respondent in May 2015, the vehicle had travelled 63,285km.

History of the proceedings

The Appellants' application to the Tribunal was first heard by a Member on 12 June 2015. In a reserved decision given on 16 September 2015, the application was dismissed.
The Appellants appealed from that decision under s 80 of the Tribunal Act. On 14 June 2016 their appeal was upheld (Temple v AMR Motors Pty Limited [2016] NSWCATAP 121). In accordance with the Orders of the Appeal Panel, the application was remitted to the Consumer and Commercial Division of the Tribunal for reconsideration by a Member, other than the Member who had made the Orders under appeal.

The decision on remitter

It is the decision on remitter from the Appeal Panel that is the subject of the further appeal before us. As we have said, that decision was delivered by the Member on 22 March 2017.
The Member's reasons for decision (the Reasons) are lengthy and comprehensive, addressing in detail both evidence and the applicable law. The Member recites the history of the present proceedings, identifying the original decision and the reasoning of the Appeal Panel in determining the appeal from that decision. He notes that as the remitter from the Appeal Panel did not seek to confine the evidence to be considered, he conducted the proceedings as a new hearing, allowing each of the parties to adduce the evidence anew before him (Reasons at [10]-[11]). No issue was taken with that course by any party on the hearing of the appeal before us.
Noting that the vehicle in question was purchased in 2010, he identified the proceedings to involve a consumer claim, with the relevant law to be applied to be that found in the Fair Trading Act 1987 (NSW), in the form that the Act took at the date upon which the vehicle was purchased. He observed that the Australian Consumer Law (NSW) had not, at that time, been enacted. That observation was made because the Appeal Panel had recorded a contention by the Appellants that the Member who had given the first decision had failed to refer to that law.
As none of the parties before him were legally represented, the Member from whose decision the present appeal is brought recognised the need to examine the evidence, the bases of claim and the response to the claim by the Respondents. He did so in order to address both the jurisdiction of the Tribunal to entertain the proceeding and to distil the causes of action arising from the material facts adduced before him. The Member stated that the Appellants rights arose "in contract and statute law" (at [96]).
At [97] the Member identified the Respondents' obligations to the Appellants as arising "under the law of contract" but then stated that "these came to an end on 14 December 2013 when the new car warranty expired", with the consequence that he would "not discuss them further". Strictly speaking, this is not a correct statement of the legal position. Statutory conditions and warranties identified in Div 4 of Pt 4 of the Fair Trading Act, as it was in December 2010, were part of the "law of contract" applicable to the Appellants' purchase of their vehicle in December 2010. The fact that the manufacturer's warranties were expressed to expire on 14 December 2013 did not, by operation of that term of the warranty, mean that the conditions and warranties implied by statute as forming part of the contract to purchase the vehicle did not persist. However, nothing presently turns upon the Member's statement as he then proceeded to consider and apply the relevant provisions of the Fair Trading Act and, so far as they were then applicable, the relevant provisions of the Consumer Claims Act 1998 (NSW) (now repealed).
In the context of his consideration of the relevant statutory provisions, the Member identified the different statutory responsibilities of AMR, as the supplier and service provider of the motor vehicle, and those of Mazda as the importer and deemed manufacturer of that vehicle. He referred to the provisions of s 40Q of the Fair Trading Act, as those provisions were implied in the contract between AMR and the Appellants, directed to the quality and "fit for purpose" requirements when supplying the Mazda vehicle to them. Reference was also made to the provisions of s 40ZA(b) whereby Mazda was bound to indemnify AMR for any breach by the latter of the implied conditions arising under s 40Q. Reference was also made to the provisions of s 40W, imposing a direct obligation upon Mazda to compensate the Appellants for loss or damage they may have suffered by reason of the goods not being of merchantable quality when sold by AMR to the Appellants.
Having reviewed the evidence, the Member proceeded to determine "the disputes". He identified as being "at the centre of the dispute", or rather its resolution, the need to determine whether the vehicle sold to the Appellants was of "merchantable quality", within the meaning of s 40W(3) of the Fair Trading Act. Having found that the vehicle was reasonably fit to drive and operate as a private passenger vehicle, as it was intended to be at the time of purchase, he found that the provisions of para (a) of s 40W(3) were satisfied. The Member also considered that the price paid for the vehicle did not, of itself, weigh against a finding of merchantable quality within the meaning of para (b) of the subsection.
He then proceeded to consider the "other relevant circumstances", being the expression in para (c) of s 40W(3). That consideration, so he observed, necessitated determination of the issue between the Appellants and the Respondents as to whether the diesel engine management system in the vehicle, consisting of the DPF and fuel surges during Regeneration, either of themselves or collectively disclosed that the vehicle was not fit for the purpose for which such a vehicle was commonly purchased. In that context he addressed the contention by the Appellants that those two components, operating in accordance with the engine design, would lead to premature engine failure.
Having identified the issue in that manner, he found that there was no evidence to support such a contention, there having been no examination of the engine carried out to determine the degree of wear to date. Nothing in the evidence, according to his finding, showed that engine wear to date differed from that of a vehicle with a similar kilometre reading that was fitted with a different diesel engine management system, designed not only to meet efficient diesel combustion but also to address required emission controls from the vehicle (at [129]).
The Member further found that: 1. Regeneration, involving fuel surge together with admixing of oil and diesel, were part of the engine design, with no evidence indicating that the engine in the Appellants' vehicle was operating other than within Mazda's specification for that engine; 2. there was no requirement for a technical description of the manner in which the subject engine operated to be included in the owner's manual, the engine management system for a diesel engine utilised by that in the Appellants' vehicle being common to many diesel engines; 3. no evidence was given on behalf of the Appellants that there was anything unusual about the operation of the diesel engine fitted to the Appellants' vehicle such that disclosure of its technical operation was required for the purpose of enabling them to make an informed choice when purchasing the vehicle new; 4. although the Appellants complained that they were not informed of the "Regeneration process" at the time of purchasing the vehicle, no allegation was made that the absence of this information amounted to misleading and deceptive conduct within the meaning of s 42 of the Fair Trading Act. Even if, contrary to the Member's understanding, the Appellants did seek to invoke the provisions of that section, the "silence" of Mazda and AMR as to the technical aspects of the diesel engine operation fitted to their vehicle could not constitute deceptive and misleading conduct as there was no evidence that the manner in which the diesel engine was designed to operate had any unusual feature so as to place it outside consumer expectations for such an engine; 5. while the Appellants had attempted to demonstrate a high level of fuel consumption as a consequence of fuel usage over a relatively short distance, averaged over longer travel distances, the evidence did not establish unusual fuel consumption in the operation of the Appellants' vehicle, as controlled testing undertaken by Mazda had demonstrated; 6. nothing inconsistent with the Fuel Guide, explaining the manner in which fuel consumption figures were determined under that Guide and the manner in which figures so determined should be used, had been demonstrated; 7. on balance, the evidence established that the Regeneration system did not necessarily result in more frequent oil changes and that any increased need for oil level checks and oil changes related to variations in driving conditions rather than any fault or defect in the engine fitted to the Appellants' motor vehicle; and 8. while the Appellants had claimed that a warning light, known as the DPF warning light, had failed to operate, the evidence did not establish any defect in its operation, having regard to its design function, the trigger for its operation not being demonstrated to have occurred.
Ultimately, the conclusion expressed by the Member at [139] is as follows: "[139] The Applicants have failed to prove that the Car is not reasonably fit for a particular purpose or is not of merchantable quality, or that Mazda or AMR engaged in misleading or deceptive conduct or made any false representations whether by act or omission. They have failed to prove any loss or damage suffered as a consequence of the alleged breach by Mazda or AMR of their contractual or statutory duty. There is nothing to rectify or repair in the Car's engine or engine management system. The Applicants are not entitled to a refund of the purchase price of the Car. The claims fail and must be dismissed.

The grounds of appeal

The Notice of Appeal identifies 23 grounds. These grounds are expressed somewhat discursively but each appears to be directed to a particular paragraph or paragraphs of the Reasons with which the Appellants take issue, either as to the observations expressed by the Member in the particular paragraph or with a particular conclusion expressed by him in that paragraph or paragraphs.
Having considered the substance of the Appellants' grounds of appeal, it seems to us that their grounds are comprehensively captured by the final ground of appeal, expressed as ground W, which is stated to be as follows: W. In his judgment the Member accepts everything Mazda puts forward yet is highly critical of a lot of the evidence provided by Mr Alessi. He ignores my criticisms levelled at Mazda and its tests on my car. It seems hard to believe that he can be so dismissive of Mr Alessi's conclusions yet accept so uncritically everything Mazda contends.
Mr Alessi is a mechanical engineer who was retained by the Appellants to inspect their vehicle and report upon the complaints made by them in respect of that vehicle.

The reply of the respondents

The reply to the Notice of Appeal, prepared on behalf of the Respondents by Mazda, contended that the decision under appeal was correct, as the Appellants had not proved the claims that they sought to make. The reply also responds to each paragraph in the Notice of Appeal by reference to the evidence given in the case. This detailed response follows a general denial by the Respondent that the Reasons disclose any error of law or fact in the decision made by the Member to dismiss the Appellants' application to the Tribunal.

The hearing

Neither party was legally represented on the hearing of the appeal. The Appellants were represented by the Second Appellant, Mr T Fischer. AMR was represented by its employee, Mr Phillip Donato while Mazda was represented by Ms Chooi-Lin Han, whose position with the Company was that of Customer Relations Specialist.
Mr Fischer stated that his appeal was one in which he challenged the factual findings of the Member. He candidly acknowledged that he had "no idea where his remedy lies in law", never having looked at the Fair Trading Act as it applied at the time at which the vehicle in question was acquired in December 2010.
We have earlier indicated that the appeal is brought under s 80(2) of the Tribunal Act. While an appeal, as of right, lies under the subsection on any question of law, leave is required to entertain an appeal "on any other grounds". As the present appeal is one brought from a decision in the Consumer and Commercial Division, an added constraint is imposed where leave is required under s 80(2)(b). That constraint is found in cl 12 of Sch 4 to the Tribunal Act which relevantly provides: 12 Limitations on internal appeals against Division decisions (1) An Appeal Panel may grant leave under section 80(2)(b) of this Act for an internal appeal against a Division decision only if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because: (a) the decision of the Tribunal under appeal was not fair and equitable, or (b) the decision of the Tribunal under appeal was against the weight of evidence, or (c) significant new evidence has arisen (being evidence that was not reasonable available at the time of the proceedings under appeal were being dealt with).
Where, as here, the Appellants are not legally represented, we recognise that it is incumbent upon us to examine the grounds of appeal in order to discern whether those grounds disclose a question of law, albeit not identified as such by the Appellants (Prendergast v Western Murray Irrigation Limited [2014] NSWCATAP 69 at [12]). With this injunction in mind, we have examined the grounds of appeal in order to determine whether such a question is raised. We discern no such question.
As would be apparent from our earlier discussion of the Reasons, the Member was careful to identify, in some detail, the particular provisions of the Fair Trading Act that potentially apply to the consumer claim brought by the Appellants. He correctly identified that the applicable legislative provisions were those that were operative at the time at which the vehicle was purchased in December 2010, as the Appellants claim could only be sustained by reference to that transaction. He also correctly identified the legislative provisions that impose obligations upon Mazda as manufacturer of the vehicle sold by AMR to the Appellants. We discern no legal error in the identification of the relevant statutory provisions nor in the application of those provisions to the facts as found by the Member.
In the result, the Appellants require leave to appeal, applying the constraints to the grant of leave that we have earlier identified by reference to cl 12 of Sch 4 to the Tribunal Act. Any decision to grant leave to appeal must be undertaken in a legally principled manner and not simply because, if we were hearing the matter anew on the evidence led before the Member, we might reach a different conclusion when considering that evidence (although in the present case that would not be so).
It is fundamental that an appeal on a question of fact does not provide and is not intended to provide an opportunity for an applicant dissatisfied by the result of a hearing at first instance to re-run the same case before an Appeal Panel. Yet, that is, in effect, what the present Appellants seek to do by identifying what they contend are contestable findings of fact by the Member.
In the Reasons, the Member recorded at length the history attending the purchase of the Appellants' vehicle; the occasions upon which it was taken to various service centres or automotive repairers for both service and mechanical checks; the reports provided following service or engine examination, as well as communications between the Appellant and various entities, including the Respondents (at [17]-[55]). Having recorded all of those events and circumstances in detail, there is nothing in the Reasons demonstrating they were forgotten or ignored when the Member came to express the conclusion that he did, the essence of which is earlier set out at [28]. Our earlier description of the vehicle and the operation of its engine that is the subject of complaint is taken from the detail found in those Reasons.
The Member then addressed the expert evidence received by him, being the evidence that was fundamental to the Appellants' claims. He initially had evidence in the form of a report from Mr Alessi, the Appellants' expert mechanical engineer, and from Mr Bradford, a Senior Manager in the Test and Warranty Division of Mazda, responsible for testing the Appellants' vehicle. On the first day of hearing, the Member identified the divergent opinions from those witnesses. He required that they give concurrent evidence. Having understood, through that process, the basis of their disagreement on matters considered to be critical to the determination of the dispute, he adjourned the hearing, giving a direction that those witnesses agree upon a protocol for the further testing of the vehicle, to assist with the determination of the Appellants' claims (at [60]).
In accordance with that direction, a testing protocol was formulated by Mazda and submitted to Mr Alessi. In this context, the Reasons record the following at [83]): The Tribunal had directed the parties to conduct an agreed test regime, but Mr Alessi did not sign his agreement to the above tests, but nor did he propose different tests. This placed Mazda in a difficult position, as it had to choose between conducting tests as it had designed and proposed to Mr Alessi, or conducting no tests. In the absence of Mr Alessi's agreement, Mazda proceeded to conduct the tests… The report of those tests prepared by Mr Bradford was tendered before the Member at the resumed hearing of the proceedings.
It appears from the Reasons that some challenge was made to the objectivity of Mr Bradford, given his position as an employee of Mazda. The Member clearly acknowledged that position, stating at [80] his satisfaction that Mr Bradford "had knowledge of the matters about which he gave evidence". The Member continued by indicating that the evidence was to be "weighed in respect of facts set out, and opinions expressed based on those facts".
Although the Appellants are critical of the fact that the Member ultimately accepted the test results undertaken by Mazda and spoken to by Mr Bradford, there can be no doubt that a careful analysis of the evidence led through Mr Alessi on behalf of the Appellants was given detailed consideration. Each of the three reports prepared by him were identified, various paragraphs from those reports extracted and observations made as to why some of the propositions found in them were not founded upon fact but rather upon assumptions not established by evidence (see, for example, [65]-[68]).
The consideration of Mr Alessi's evidence and that of Mr Bradford is reflected in the Reasons at [56]-[88]. Where a conclusion is reached by Mr Alessi, the Member states why, if it be the case, he does not accept that conclusion. Having considered the context in which Mr Alessi's report was addressed and a finding or conclusion rejected by the Member, we do not find anything improbable or irrational in the reasons expressed by the Member for so doing.
Several passages in the Notice of Appeal and the Appellants' submissions suggest that the Member's reasons for not accepting the conclusions expressed by Mr Alessi are founded upon a failure on the part of Mr Alessi or the Appellants to have carried out tests or an examination necessary to support an assumption or conclusion expressed on their behalf. The Appellants are critical of findings of that kind, not because the identified tests would be irrelevant, but rather because the cost of carrying out tests of that kind would not be consistent with a determination "in a just, quick and cheap manner". Such an observation is made, for example, in respect of the Member's statement that the assertion of premature engine failure could only be sustained by stripping down the engine to measure its wear to date in order to support that assertion (at [127]).
The Appellants' criticism in this regard is, with respect, misguided. Their complaint about costs is apparently directed to the provisions of s 36 of the Tribunal Act by which the "guiding principle" of the Act and the procedural rules, as applied to proceedings in the Tribunal, "is to facilitate the just, quick and cheap resolution of the real issues in the proceedings" (emphasis added). The subsection is not directed to avoiding the cost of obtaining evidence essential to proof of a claim brought by an applicant.
A further contention made by the Appellants, said to support the claim that the Member's findings of fact were, in effect, perverse, is his failure to address an assertion by them that Mazda was required to rectify a CX-5 diesel engine for fault. The need for rectification of the CX-5 engine was said to be a fact in the public domain. The need for rectification of that engine, so it seems to have been contended, was, at least by inference, indicative that the diesel engine operating system utilised by Mazda was inherently faulty.
The Member adverted to that contention at [54]. The Appellants had raised that contention in correspondence with Mazda during 2015. The Member noted the written response of Mazda, stating that the CX-5 "used a different engine and the problem concerned a programming adjustment with the Power Control Module and positioning of the oil level gauge." The letter also recorded that no such issue had been identified in the Mazda 3 diesel engine, the complaint made by the Appellants giving arise to different considerations to those identified in respect of the CX-5 engine. Although Mr Fischer, on behalf of the Appellants, had sought to pursue that issue further in correspondence, no response on that topic had been received from Mazda. The absence of response by Mazda was relied upon by the Appellants as giving rise to an inference that there was a likely a design fault in the engine fitted to their Mazda 3 vehicle.
As no evidence was presented to the Member on behalf of the Appellants to relate the particular problem requiring rectification of the CX-5 engine to the complaints made by the Appellant in respect of the engine operating system in their Mazda 3 vehicle, it is unsurprising that the Member did not address that issue further. It was not for the Member to pursue Mazda, in the context of these proceedings, over the failure to respond to the Appellants' inquiries. In light of the response from Mazda that the CX-5 problem was unrelated to that said to be experienced by the Appellants, absent any evidence from the Appellants upon which an inference could be drawn that the problems were in fact related, pursuit of the issue was outside the scope of relevant inquiry in the present proceedings.
We also note that throughout their written submissions on appeal, the Appellants have made repeated reference to misleading or deceptive conduct on the part of the Mazda. Much of the submissions made in those terms are directed to the initial testing of their vehicle by Mazda for the purpose of addressing their complaints or in respect of the testing carried out for the purpose of these proceedings. Properly understood in the context of the proceedings, those submissions must be characterised as challenging the plausibility of the evidence relied upon my Mazda. Such a challenge goes to the acceptance of the evidence led on behalf of Mazda, not to a separate head of claim. As already stated, the Member expressed his reasons for preferring the evidence of Mazda and we find no error in his reasons for so doing.
Further, the Member ultimately concluded that the complaints of the Appellants, so far as they sought to engage any of the relevant provisions of the Fair Trading Act, had not been proved to the civil standard of proof required of proceedings in the Tribunal, namely proof on the balance of probabilities of the elements of the breaches relied upon by the Appellants (Reasons at [17] and [94]).
The only relevance for present purposes of "misleading or deceptive conduct" was conduct satisfying that description within the meaning of s 42 of the Fair Trading Act, as it was in December 2010 when the vehicle was purchased. The Member addressed that concept in the manner earlier summarised. He determined that the failure to make reference to the operating system of the vehicle in the manner alleged by the Appellants did not engage the provisions of that section. We discern no error of principle in that determination for the reasons expressed by the Member in the passages to which we have earlier referred.

Leave to appeal should not be granted

We have earlier stated that the grant of leave to appeal requires the grant to be considered in a principled manner. The principles that guide the grant of leave have been usefully stated and summarised in the Appeal Panel's decisions in Collins v Urban [2014] NSWCATAP 17. Like the present appeal, the appeal considered in that case was one brought from the Consumer and Commercial Division of the Tribunal. The decision therefore necessitated the consideration of both s 81(2)(b) of the Tribunal Act as well as cl 12 of Sch 4 to the Act. As the opening word of cl 12(1) state, leave is to be granted "only if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice" for one or more of the reasons set out in paragraphs (a), (b) and (c) of the subclause.
The Appeal Panel stated in Collins v Urban at [76] that the power to grant leave will be engaged by reference to any of the circumstances identified in cl 12(1)(a), (b) or (c) where there was a "significant possibility" or a "chance which was fairly open" that a different "and more favourable result would have been achieved by the appellant had the relevant circumstances in para (a) or (b) not occurred." Reference is made to the fresh evidence provision in para (c) of the subclause but that is not a circumstance that arises in the present appeal, there being no indication by the Appellants of reliance upon "fresh evidence" satisfying the provisions of that paragraph.
At [77] of Collins v Urban, the Appeal Panel made further observations as to the operation of cl 12(1)(a) and (b). In relation to para (a) it was observed that a denial of procedural fairness would identify a decision that was "not fair and equitable". There was not and could not be any suggestion of a denial of that kind in the present case, given the lengths to which the Member went to accommodate and consider evidence, particularly "expert" evidence, sought to be led by all parties.
When considering cl 12(1)(b), the Appeal Panel said this at [77]: "(2) The decision under appeal can be said to be 'against the weight of evidence'…where the evidence in its totality preponderates so strongly against the conclusion found by the Tribunal at first instance that it can be said that the conclusion was not one that a reasonable Tribunal Member could reach."
For reasons we have given, we do not find that the Member's decision is one against the weight of evidence as that concept is considered in Collins. While there was a contest in the evidence led by the parties, it cannot be said that "in its totality" it preponderates against the conclusion reached by the Member. The process of evaluating evidence undertaken by him was conventional and, on the material before us, does not demonstrate perversity in the findings that he made.
The general principles that should inform the grant of leave to appeal where the provisions of cl 12(1)(a), (b) or (c) are engaged were also considered by the Appeal Panel in Collins v Urban. As the Appeal Panel there recorded, the statutory language of s 80(2)(b) of the Act affords a discretion on the part of an Appeal Panel to grant leave to appeal such that even if the requirements of cl 12 are satisfied, the Appeal Panel must still consider whether the discretion afforded by the section should be exercised (at [80]-[81]).
Having analysed the relevant cases, the Appeal Panel articulated the following general principles at [84] in these terms (citations of cases omitted): "(1) In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact; (2) Ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administrational policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interest of justice for it to be reviewed…".
Applying these general principles to the present case, we find no basis upon which to grant leave to appeal. The case does not give rise to any issue of principle nor does it raise questions of public importance, matters of administration or policy of general application. It involves no more than a contest of fact, resolved by appropriate and conventional principles of fact finding. The process of fact finding was not unorthodox and there is no factual finding pertaining to an issue central to the determination required to be made that was unreasonably reached. We discern no substantial miscarriage of justice by reason any facts or circumstances referrable to paras (a), (b) or (c) of cl12(1) of Sch 4 to the Tribunal Act.

CONCLUSIONS and ORDERS

For the reasons stated, we have decided that the application for leave to appeal should be dismissed. To the extent that the appeal has been instituted by the filing of a Notice to Appeal, that appeal should be dismissed.
Accordingly, we make the following orders: 1. Leave to appeal is refused. 2. The Appeal is dismissed. 3. Reasons to be delivered.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 November 2017

Consumer Claims Act 1998(NSW)

Motor Dealers Act 1974(NSW)

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