VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
civil DIVISION
CIVIL CLAIMS LIST		VCAT REFERENCE NO. C3998/2020
CATCHWORDS	
Applicant purchased a new Mitsubishi SUV from the Respondent (a car dealership) – Applicant alleges that the car’s model year was incorrectly recorded on a database such that she has suffered loss and damage – Applicant essentially claims that the Respondent has breached various provisions of the Australian Consumer Law (Victoria) and seeks a refund of the purchase price – Respondent acknowledges that the model year of the car was incorrectly recorded on the database but denies that it is responsible for the error or that it has breached the provisions of the ACL.	

APPLICANT	Cheryl Loughnan	
RESPONDENT	Heaths Road Mits Pty Ltd (ACN 138 465 648)	
WHERE HELD	Teleconference	
BEFORE	D. Kim, Member	
HEARING TYPE	Hearing	
DATE OF HEARING	3 December 2020	
DATE OF ORDER	19 March 2021	
CITATION	Loughnan v Heaths Road Mits Pty Ltd (Civil Claims) [2021] VCAT 241	

Order
1	The applicant’s claim against the respondent is dismissed.

D. Kim
Member			

APPEARANCES:		
For Applicant	In person	
For Respondent	Mr B. Hopkins, Dealer Principal/Director
Mr J. Marvilla, Sales Manager/Director	

Reasons
INTRODUCTION 
1	By application dated 7 July 2020, the applicant, Ms Loughnan, commenced this proceeding against the respondent, being a dealership trading as Werribee Mitsubishi. Throughout the proceeding the parties provided the Tribunal with a number of correspondence and documents. 
2	The fact that in these reasons I have not expressly mentioned each and every correspondence and documents that the parties have provided the Tribunal does not mean that I have not read and considered all the correspondence and documents that they have provided. I have read and considered them all. Even if I had specifically referred to correspondence and documents which I have not mentioned in these reasons, that would not have altered my decision in this proceeding. 
3	For the reasons that I have set out below, I dismiss the applicant’s claim against the respondent.
the applicant’s claim 
4	This proceeding, in essence, concerns the incorrect recording of the model year of a car that Ms Loughnan purchased from Werribee Mitsubishi. She seeks a full refund of the purchase price as her remedy.
5	On or about 22 October 2019, Ms Loughnan purchased a new Mitsubishi SUV from Werribee Mitsubishi for the purchase price of $29,490.00. At the time of purchase, and as recorded in the contract of sale, the car was identified as a 2019 model (MY19) in that its built and compliance year was 2019. However, when it came to Ms Loughnan trying to insure the car, she was informed by RACV that according to their records, the car was identified as a 2018 model (MY18). There is no dispute between the parties that the correct model year (MY) of the car is MY19.
6	Ms Loughnan attributes blame for the incorrect MY (herein after referred to as “the error”) to Werribee Mitsubishi. She alleges that third parties (such as the National Exchange of Vehicle and Driver Information System (NEVDIS) have stated in writing that they received the information about the year of the car incorrectly from the respondent and that the respondent had “wrongfully duck-shoved blame” on to third parties and insurance companies. She is also critical of Mitsubishi Motors Australia Ltd’s conduct (such as by alleging that they lied to her that the error had been fixed). Mitsubishi Motors Australia Ltd (MMAL) is the importer and supplier of vehicles to Werribee Mitsubishi. MMAL is not a party to this proceeding and therefore I do not have any power to make any findings or orders against that company. At no point in the proceeding did Ms Loughnan make an application to the Tribunal seeking to join MMAL as a party to the proceeding.
7	Ms Loughnan alleges, among other things, that:
a	the error had been caused by Werribee Mitsubishi. She alleges that the Vehicle Identification Number (VIN) was supplied by the respondent or the manufacturer during the registration process; 
b	Werribee Mitsubishi knew of the error on 29 October 2019 when the problem was flagged by her;
c	Werribee Mitsubishi had not come clean about the error until 5 November 2019 and in fact has wrongfully blamed third party databases and insurance companies for the error;
d	on 5 March 2020, the Victorian Ombudsman (along with Consumer Affairs Victoria (CAV)) had stated in their written assessment that the car had been incorrectly registered with a third party as MY18; and
e	the error had not been rectified. She alleges that as at 25 June 2020, the car was still identified as MY18 by a major car dealership after it had conducted an appraisal or valuation.
8	She alleges that the error: 
a	is preventing her from selling the car;
b	has caused the car to be incorrectly devalued; and
c	has “wrongfully devalue[ed] the car’s insured monetary value and resale value for the life of the car”.
9	Whilst Ms Loughnan has not expressly identified the precise cause or causes of action that she is relying on, including any relevant sections of a statute, in her application form she claimed: 
a	“I AM ENTITLED TO RECEIVE A PRODUCT THAT IS FIT FOR PURPOSE/INSURED FOR ITS CORRECT MONETARY/RESALE VALUES & IS LEGALLY RECOGNISED AS THE CORRECT YEAR MODEL, ESPECIALLY IF REQUIRED TO SELL THE VEHICLE AT A LATER STAGE!”
b	“Werribee Mitsubishi was negligent & failed to specifically assist in resolving my vehicle’s identity error!”
c	She was threatened to have charges laid against her after she “dared to stand up for my rights after being financially ripped off!” 
d	She has sought the assistance of various third parties, including various government agencies, for over a year but her concerns and requests had “fallen on deaf ears/fogged off”. The third parties she has mentioned include: the Victorian Ombudsman, CAV, VicRoads, State and Federal Members of Parliament including the offices of the Premier and the Prime Minister, Federal and State departments, Members of the UK Parliament including the office of the UK Prime Minister, and the ACCC.
10	In light of Ms Loughnan’s allegations it is important to note that the Tribunal is a creature of statute. The Tribunal does not have any inherent jurisdiction like the courts of this country have. This means that unless a statute gives the Tribunal such powers, the Tribunal cannot hear and determine matters which are derived from the common law (such as in negligence or breach of contract) or in equity (such as for rectification or equitable unconscionable conduct). 
11	Based on the substance of Ms Loughnan’s allegations, the power of the Tribunal to hear and determine Ms Loughnan’s claim against Werribee Mitsubishi is under the Australian Consumer Law and Fair Trading Act 2012 (Vic), which adopts the Australian Consumer Law (ACL) as a law of this State. Therefore, to the extent that Ms Loughnan’s allegations fall outside the jurisdiction of the Tribunal, such as any allegations of criminal activity or failure by a statutory body or the government to properly investigate her claim against the respondent, I do not have the power to hear and determine such grievances raised by Ms Loughnan. Ms Loughnan seeks a full refund of the purchase price as her remedy. Accordingly, I must determine whether or not she is entitled to a full refund.
12	Further, given that the Tribunal is not a court, unless the Tribunal orders the parties to do so, the parties are not required to file and serve pleadings. And even if the Tribunal orders parties to do so, there are no set rules as to pleadings under the rules of the Tribunal.
13	Considering the various allegations made by Ms Loughnan as to her legal rights as against Werribee Mitsubishi, I have extrapolated, as best as I can, that she is relying on the following provisions of the ACL:
a	Section 18 of the ACL, which requires a party not to, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.
b	Section 20 of the ACL, which requires a person not to, in trade or commerce, engage in conduct that is unconscionable, within the meaning of the unwritten law from time to time.
c	Section 21 of the ACL, which relevantly requires a person not to, in trade or commerce, in connection with the supply of goods or services engage in conduct that is, in all the circumstances, unconscionable.
d	Section 55 of the ACL, which relevantly requires a supplier of goods, in trade or commerce, to guarantee that the goods are reasonably fit for any disclosed purpose, and for any purpose for which the supplier represents that they are reasonably fit.
e	Section 56 of the ACL, which relevantly requires a supplier of goods, in trade or commerce, to guarantee that the goods correspond with their description.
f	Section 60 of the ACL, which requires a supplier of services, in trade or commerce, to guarantee that the services will be rendered with due care and skill.
14	As the applicant, the onus is on Ms Loughnan to prove, on the balance of probabilities, that by Werribee Mitsubishi’s conduct (and I include the conduct of its officers and employees in this regard), it has breached a specific law among those I have mentioned, and this entitles Ms Loughnan to a full refund.
Respondent’s defence
15	In essence, Werribee Mitsubishi:
a	denies that they caused or created the error;
b	alleges that the error was caused by a third party in the third party’s database;
c	upon becoming aware of the error, it attempted to have the error rectified; and
d	the error has now been rectified such that on a search of the car, the car is identified as a MY19 car.
16	Werribee Mitsubishi denies that it has breached any law.
17	I now turn to the parties’ evidence.
the parties’ evidence 
The Applicant’s Evidence
18	The following matters have been obtained from the evidence that Ms Loughnan gave at the hearing and from documents she provided the Tribunal.
19	In October 2019, Ms Loughnan contacted Werribee Mitsubishi seeking to purchase the car. She had previously had issues with another dealership in respect of another car and she wanted to ensure that Werribee Mitsubishi would be able to provide her with the car and correct details of the car including its MY. 
20	On or about 22 October 2019, Ms Loughnan signed the contract of sale for the purchase price of $29,490.00 (the date on the contract is 22 October 2019). The contract recorded the MY of the car as MY19. 
21	Prior to collecting the car, Ms Loughnan contacted Werribee Mitsubishi to check that the car was a MY19 car. Werribee Mitsubishi sent her an email that showed the car’s model year as MY19. 
22	On 29 October 2019, Ms Loughnan contacted RACV in order obtain car insurance. RACV informed her that according to their records, the car was showing up as a MY18 car. Despite the discrepancy, RACV listed on her Car Insurance Policy that her car was MY19 on the condition that she would have the error rectified with VicRoads and Mitsubishi.
23	Because she had been informed that there was no problem with the car’s identity, she took delivery of the car on 30 October 2019.
24	On 30 October 2019, VicRoads provided her with registration paper that showed the car as being MY19. On the same day, she spoke to RACV who informed her that the photograph of the compliance plate that Werribee Mitsubishi had sent her would not be accepted as proof that the car was a MY19 car. She also gave very brief oral evidence that the car had a faulty driver’s window at one point and the number plate was scratched but she provided no documentary evidence, including any photographs, in support of her allegation. She also gave evidence that the alleged issues with the door and plate were not the basis of her claim but rather her claim was in respect of Werribee Mitsubishi’s conduct and liability in respect of the error. 
25	On 5 November 2019, Mitsubishi “owned up” or “came clean” about the identity error in writing. That month, Ms Loughnan raised the issue of the error with CAV.
26	On 16 December 2019, Ms Loughnan emailed MMAL addressing the correspondence to its CEO. In her email she stated, among other things, that the car was not a MY19 car.
27	Subsequently, Ms Weeks of MMAL sent a reply email to Ms Loughnan where Ms Weeks stated:
a	“we confirm that the … vehicle is a 2019 model vehicle with a build date of 25/3/2019”.
b	MMAL was an importer and wholesaler of Mitsubishi motor vehicles and related products and their dealer network both sold and provided after sales service and warranty under a franchise agreement.
c	Any legal action that she chose to pursue against the respondent was between herself and the dealership.
d	MMAL was unable to provide any further assistance.
28	On 28 December 2019, Ms Loughnan sent a further email to MMAL (copying persons from Parliament, Department of Justice, the Australian Financial Complaints Authority (AFCA) and the ACCC) stating that:
a	She had expected a personal response from the CEO of MMAL.
b	Her complaint had not been resolved since she collected her car on 30 October 2019.
c	The handover document that she had signed had been “falsified/forged” by the respondent after “they stuffed up the Registration Number of which car [she] collected”.
d	Werribee Mitsubishi had “refused to retract” that she had not “collected two cars after falsifying [her] documents”.
e	The car she purchased was not recognised as a 2019 model for “Insurance/Resale Sale purposes” and that the car had “unfairly depreciated”.
f	She had made MMAL know of the problem before she collected the car and MMAL had not “given a damn”.
g	The error had not been corrected and she would not have taken delivery of the car if she had known that MMAL would not take any responsibility rectifying the error.
h	She requested a full refund of $29,490 by electronic funds transfer as “both these major stuff ups [had] failed to be rectified”.
i	The conduct of the respondent had been disgusting.
j	Media and legal action would pursue if the matter was not immediately dealt with.
29	On 30 December 2019, Ms Weeks of MMAL emailed Ms Loughnan stating that:
a	Werribee Mitsubishi’s handover document and Ms Loughnan’s allegation that it had been falsified was something that MMAL could not offer any comment on as it had nothing to do with MMAL.
b	“We once again confirm that the vehicle you purchased is a 2019 built 2019MY vehicle. Please refer to the owner’s manual for the information related to the vehicle date label attached to your vehicle.”
c	MMAL had previously provided the following response to her – the information of the MY was supplied to RACV by a third party company called Glass’s Guide, who in turn sourced their information from a company called POLK. POLK manages a database called VINdicator that matches VINs to a model and year. There was an error in this database in that the car’s VIN was incorrectly reporting as a MY18 vehicle, which MMAL had requested that POLK correct. POLK indicated that they would correct the error in their system. MMAL confirmed that the car was correctly reported as a MY19 car in the Australian Government NEVDIS database and RACV “should be able to override this” as MY19 in the interim.
d	MMAL would not accede to her request for a full refund.
30	By letter dated 20 February 2020 to AFCA, the RACV stated that:
a	On 29 October 2019, Ms Loughnan had contacted them to arrange a new Comprehensive Motor Insurance policy for her Mitsubishi Eclipse Cross station wagon MY19, requesting an inception date of 30 October 2019.
b	In response, RACV had advised her that VicRoads had listed the vehicle as a MY18 to which Ms Loughnan advised that this was incorrect.
c	Nevertheless, RACV provided a quote of the vehicle as a MY19 series.
d	RACV advised Ms Loughnan that she would need to follow up the discrepancy with VicRoads and the dealership, to which she agreed to do so.
e	On 29 October 2019, Ms Loughnan contacted the RACV again where the RACV referred to the Glasses Guide to obtain release dates for the car. Ms Loughnan agreed that her car must be a MY19 series and paid for the policy in full.
31	On 5 March 2020, Mr Mitchell of the CAV emailed Ms Loughnan stating that based on CAV’s assessment, there had not been a clear breach of the law by Werribee Mitsubishi.
32	On 24 April 2020, in reply to a communication from Ms Loughnan, Ms Cole of the Office of the Honourable Lisa Neville MP sent Ms Loughnan an email stating: 
a	Ms Cole had checked the registration number of the car with “a variety of entities”;
b	it appeared that “Mitsubishi”, RACV and VicRoads records all showed the car as a MY19;
c	from what Ms Cole saw the issue had been resolved;
d	Ms Loughnan was not likely to be able to exchange the car or get a refund given these circumstances;
e	Ms Cole hoped that Ms Loughnan could appreciate that she had followed multiple pathways to resolve the issue for Ms Loughnan;
f	if there was still an issue it would be best for Ms Loughnan to take it up directly with RACV;
g	if there was any financial impact on her it would be from RACV – not Mitsubishi or the State Government through VicRoads;
h	if Ms Loughnan was concerned regarding the resale value of the car, to be assured that VicRoads was certain that the car is MY19; and
i	“we have exhausted any further pathways” and she believed that the matter had been resolved.
33	On 27 April 2020, Ms Loughnan had a telephone conversation with the Member Relations consultant of RACV regarding her issue with the car’s MY.
34	Subsequently, Ms Loughnan raised her concerns regarding her dealings with RACV to AFCA.
35	On 30 April 2020, Ms Cole of the Office of Honourable Lisa Neville MP emailed Ms Loughnan stating: 
a	“we have been able to completely resolve the matter on your behalf”;
b	the car was first mistakenly identified within the Glass’s Guide database as a 2018MY. This information was “sourced from a company called POLK, who manage a database called Vindicator”;
c	the error was in the database and was not in any other database;
d	Mitsubishi had made sure to update the information on the database and the information had been updated;
e	there were two ways for Ms Loughnan to check that the database had been updated. First was through the Australian Government’s NEVDIS database which correctly reported the car as a 2019 MY. The second was through the Victorian Government and VicRoads which also correctly reported the car as a 2019 MY. The error no longer existed on any database as confirmed through these two Government sources;
f	she had done everything in her power on behalf of the Minister to come to a satisfactory resolution; and
g	she believed it was a “great resolution and means this problem [was] fully resolved”.
36	By letter dated 1 May 2020, Ms Loughnan raised with the Prime Minister her complaint with Werribee Mitsubishi.
37	On 7 May 2020, Ms Cole of the Office of Minister Lisa Neville MP emailed Ms Loughnan: 
a	acknowledging previous discussions that she had with Ms Loughnan; 
b	stating that CAV had spoken to Mitsubishi in January 2020 who had advised that they had followed the error with the database suppliers and the RACV and the incorrect information had been rectified;
c	CAV had verified that the RACV had recognised the car as MY19 and had confirmed both the build and compliance dates as a 2019 model;
d	stating that Minister Neville understood Ms Loughnan was seeking either a replacement or refund of the car because Ms Loughnan believed the car had a major fault due to its misdescription;
e	suggesting that Ms Loughnan could take her matter to the Tribunal; and
f	stating there was nothing more than could be done from a State or Federal Government perspective.
38	By letter dated 19 May 2020 addressed to Ms Loughnan, the Director of the Prime Minister and Cabinet informed her that the Victorian Government would be best placed to respond to her and they had referred her letter of 1 May 2020 to the Victorian Premier’s Office for consideration.
39	Unsatisfied with CAV’s handling of her complaint, Ms Loughnan lodged a complaint about CAV’s management of her complaint. 
40	On 17 June 2020, Ms Cahill of the Office of the Victorian Ombudsman sent Ms Loughnan an email that she would be reviewing Ms Loughnan’s complaint about CAV. 
41	By letter dated 6 July 2020 from Ms Cahill to Ms Loughnan, the Office of the Victorian Ombudsman informed her of their internal review of how her complaint to CAV had been handled by Mr Mitchell of CAV. Ms Cahill indicated that Mr Mitchell’s handling of the matter had been justified.
42	On 7 July 2020, Ms Loughnan sent an email addressed to the Federal Attorney-General, the Honourable Christian Porter MP, regarding her complaint against Werribee Mitsubishi.
43	On 14 July 2020, Ms Cole of the Office of the Honourable Lisa Neville MP emailed Ms Loughnan stating: 
a	there was nothing more the State Government could do; and
b	she was entitled to take the matter up on a legal basis and provided the details of the Barwon Community Legal Service.
44	On 17 August 2020, the Office of State Attorney-General, the Honourable Jill Hennessy MP sent Ms Loughnan a letter referring to Ms Loughnan’s email of 7 July 2020 to the Federal Attorney-General. The letter stated that the issue fell within the responsibilities of the Minister for Consumer Affairs, the Honourable Melissa Horne MP and that Ms Loughnan’s email that been sent to Minister Horne for consideration.
45	On 2 October 2020, Ms Loughnan sent an email to “Judicial Commission of Victoria-Enquiries” email address copying in the Tribunal where she stated, among other things:
Attention: Helen Judicial Commission. Your Intervention please is now required to assist for my upcoming VCAT Hearing, due to the listed reasons.
…
Mitsubishi has the nerve this morning to call me personally so they can book me in for my next Car Service – back at Werribee Mitsubishi Dealership!
…
MITSUBISHI WERRIBEE, I CHERYL LOUGHNAN WILL NEVER BE LIABLE FOR ANY OF YOUR COURT FEES, LEGAL FEES ETC ASSOCIATED WITH THIS CASE, NOR WILL I EVER PAY YOU ANY COMPENSATION!
IT HAS BEEN PROVEN THAT YOU KNOWINGLY INFLICTED MY CAR’S IDENTITY ERROR ONTO ME, COTINUOUSLY LIED ETC AND THERATENED ME WITH POLICE CHARGES AFTER I DARED STAND UP FOR MY AUSTRALIAN CONSUMER RIGHTS TO RECEIVE A CORRECTLY/LEGALLY RECOGNISED VEHICLE.
46	On 15 and 25 October 2020, Ms Loughnan sent emails to the State Attorney-General regarding her complaint against Werribee Mitsubishi.
47	By letter dated 21 October 2020, the Honourable Melissa Horne MP informed Ms Loughnan that:
a	CAV had previously provided Ms Loughnan with information and advice and provided assistance through dispute resolution but that this was not to Ms Loughnan’s satisfaction.
b	Ms Loughnan had previously filed a complaint with the Victorian Ombudsman regarding CAV’s handling of her complaint.
c	Ms Loughnan had an upcoming hearing at the Tribunal to hopefully finalise the dispute.
48	On 26 October 2020, Ms Loughnan sent the Foreign, Commonwealth & Development Office of the United Kingdom (FCDO) an email regarding her dispute with Werribee Mitsubishi.
49	On 25 and 26 October 2020, Ms Loughnan sent emails to a number of persons, including the Tribunal, Honourable Melissa Horne MP, The Independent Broad-Based Anti-Corruption Commission (IBAC), the Premier, CAV, the Victorian Ombudsman, the Honourable Michael Sukkar MP, the Honourable Karen Adrews MP, the Honourable Jill Hennessy MP, the Honourable Michael McCormack MP, “Vinvestigations” of the Department of Infrastructure, the Federal Attorney-General and VicRoads. In her emails, Ms Loughnan conveyed, among other things: 
a	her displeasure at the outcome of the Office of the Honourable Melissa Horne MP’s investigation of Werribee Mitsubishi and CAV’s decision not to take any action against the respondent;
b	she stated that there was “written valuation evidence” that still showed the identity error and that her health was suffering due to her predicament;
c	she had been subjected to lies, threats, and the paper she signed had be falsified;
d	there had been gross negligence by Government Departments in their investigation and their failure to hold the respondent to account; 
e	she had been ripped off by $29,490.00 on the car and she had no legal rights to sell or insure the car due to its proven identity error; and
f	she sought support for her to obtain a full refund and to have the car removed from her premises.
50	By letter dated 17 November 2020 from the Office of the State Attorney-General to Ms Loughnan, she was informed that her issue fell within the responsibilities of the Minister for Consumer Affairs and her correspondence had been sent to Minister Horne for consideration.
51	On 27 November 2020, Ms Loughnan sent the Office of the Honourable Karen Andrews MP an email copying the Tribunal and other persons, some of whom I have already mentioned above. In her email she alleged, among other things, that she had been deliberately blocked from corresponding by email with CAV, the Victorian Ombudsman, Vinvestigations, VicRoads and others. 
52	On 30 November 2020, the FCDO sent Ms Loughnan a letter stating that her dispute was for the Government of Victoria to deal with and the UK Government was unable to intervene.
53	On 1 December 2020, Ms Loughnan sent an email to the United Kingdom Government and the Office of the Prime Minister of the United Kingdom copying in a number of persons, who included:
a	FCDO.
b	The Australian Law Reform Commission.
c	The Department of Infrastructure of the United Kingdom.
d	IBAC.
e	The Commonwealth of Australia Ombudsman.
f	The Victorian Ombudsman.
g	CAV.
h	The Office of the Premier of Victoria.
i	The Office of the Honourable Jill Hennessy MP.
j	The Office of the Honourable Melissa Horne MP.
k	The Office of the Attorney-General of Australia.
54	In the email, Ms Loughnan sought their support in respect of the proceedings. The email contained a number of previous email correspondence that Ms Loughnan had with other persons, including Werribee Mitsubishi. In the email, she stated, among other things:
a	The “Government’s” administration had been defective.
b	She was now taking legal action against Vinvestigations/Department of Infrastructure, “all affiliated Australian Government Ministers” followed by identifying Ministers individually, CAV, the Victorian and Commonwealth Ombudsman, as they had failed to protect her “consumer rights” for over a year.
c	She had been sold a brand-new SUV with a proven identity error which prevented her from selling or insuring the car for its life and that it was an “illegitimate vehicle”, and she had been ripped off by $29,490.
55	Also on 1 December 2020, Ms Loughnan sent the Tribunal an email with the subject heading, “FW: C3998/2020 Acknowledgement CAV Minister M. Horne/Vinvestigations/Dept of Infrastructure M.McCormack failed to investigate my car’s still proven identity error for 1 yr! …”.
56	In the email, Ms Loughnan alleged that: 
a	Vinvestigations/the Department of Infrastructure had failed to investigate, resolve or hold the respondent accountable for the respondent’s unscrupulous conduct.
b	The “Consumer Affairs Minister” had left her with no resolution of her car’s proven identity error even though the issue fell within the Minister’s portfolio.
c	The matter was still an open case with the Commonwealth Ombudsman.
57	The email also contained previous email correspondence that she had with the Department of Infrastructure where she alleged, among other things: 
a	against the Department and the Honourable Michael McCormack MP gross negligence and that they had not given “a damn” for over one year to her situation. She alleged that she had been “sold an “illegitimate” car! Ripping me off $29,490!”;
b	that since November 2019, Consumer Affairs Victoria and the Victorian Ombudsman and Minister Horne had left her with no resolution and Minister Horne had provided her with a “Lame excuse”; and
c	Vinvestigations/Department of Infrastructure or VicRoads had failed to supply her independent evidence to fully prove her car’s identity error had been fully corrected across all databases.
The Respondent’s Evidence
58	In addition to the documents that Werribee Mitsubishi provided, two of its directors gave evidence at the hearing — Mr Hopkins, who is also the Dealer Principal, and Mr Marvilla, who is also the Sales Manager.
59	In summary, Werribee Mitsubishi’s evidence is that:
a	Ms Loughnan initially made contact with Werribee Mitsubishi by telephone in October 2019 and spoke to Mr Marvilla. 
b	During the telephone conversation, Ms Loughnan told Mr Marvilla that she wanted to purchase an Eclipse Cross ES automatic in white for her local dealer in Geelong but they were not helpful in addressing some of her requests.
c	She said to Mr Marvilla that she would only purchase a vehicle from Werribee Mitsubishi if the contract of sale included the vehicle identification number (VIN) and the build and compliance dates.
d	She also requested the following condition be included in the contract of sale:
No advertising place on the brand-new vehicle. No current airbag recall is applicable to this vehicle. Built and complied 2019. There will be no price increase on this specific vehicle which has been agreed upon in this contract.
e	She informed Mr Marvilla that the reason why she requested the above condition be included was because of a previous experience at another car dealership where she purchased a vehicle.
f	Mr Marvilla agreed to Ms Loughnan’s requests.
g	On 24 October 2019, Ms Loughnan signed the contract of sale. Prior to picking up the car, she again spoke to Mr Marvilla on the telephone about her concerns that the car was not built in 2019. She had found out that Werribee Mitsubishi had done a stock swap from another dealer to get her the car. She had telephoned the other dealership to find out if the car had been built in 2019. The dealer in turn telephoned Mr Marvilla about Ms Loughnan’s inquiry. Subsequently, Mr Marvilla informed Ms Loughnan that the car was built in 2019 and sent her photographs of the build plate.
h	Subsequently, Ms Loughnan picked up the car and the handover was completed by Mr Mills, a sales consultant at Werribee Mitsubishi.
i	At the time of the handover, staff of Werribee Mitsubishi completed a handover report. The report was for internal purposes. Initially, the report incorrectly recorded the car’s registration number (one of the letters was incorrect). Upon Ms Loughnan notifying Werribee Mitsubishi of the mistake, the error was corrected and the amended report was sent to her.
j	Ms Loughnan contacted both Werribee Mitsubishi and MMAL of that when she contacted RACV to purchase insurance for the car, RACV had informed her that the MY of the car was 2018 and not 2019. 
k	Both the respondent and MMAL provided her with evidence that the car was in fact a MY19 and that the issue was with the insurance database, which was something that was out of the respondent’s control.
l	There had been an error as to the MY details of the car. The error had occurred when a third party had entered details of the car. Due to the error in the database, when RACV searched for the details of the car, the car was identified as a MY18 car.
m	Eventually, MMAL was able to have the insurance database fixed and the car is now displayed as an MY19 car.
n	Werribee Mitsubishi has attempted to explain the error to Ms Loughnan and that the error has been rectified but she has not been satisfied with Werribee Mitsubishi’s responses. 
o	Despite the issue being fixed, Ms Loughnan continues to send emails to Werribee Mitsubishi claiming that issues remain and demanding a full refund.
p	Werribee Mitsubishi has received approximately 40 emails from Ms Loughnan demanding a full refund. 
q	The issue had gone on for nearly 12 months and during this period, Ms Loughnan has contacted the ACCC, the VACC, the Department of Justice, the TAC, Channel 9, AFCA, VicRoads, MTAA and other government bodies and members of Parliament, including the Premier and the Prime Minister’s Office.
60	In terms of specific documents that Werribee Mitsubishi relies on, it produced a copy of an email from the Officer of the Victorian Ombudsman to Ms Loughnan in March 2020 which stated that:
a	There did not appear to be any dispute that her car was a 2019 model.
b	The car was incorrectly registered with a third party as a 2018 model.
c	Werribee Mitsubishi had requested the third party to fix the error.
d	It appeared that CAV had found no error by Werribee Mitsubishi in its handling of the matter.
e	As the evidence available supported a conclusion that the car was in fact a MY19 car, he did not consider CAV’s decision to be unreasonable and therefore, he would not be taking action on her complaint.
61	Werribee Mitsubishi also provided a copy of the following documents: 
a	“vehicle stock & single vehicle search”, which showed the model year of the car as 2019; 
b	SUNCORP insurer search of the registration number of the car, which showed the car as “2019 Mitsubishi Eclipse Cross ES (2WD) YA MY19”;
c	AAMI insurer search of the registration number of the car, which showed the car as “2019 Mitsubishi Eclipse Cross”, with a variant of “ES (2WD) YA MY19 4D WAGON”;
d	search on the RACV website (https://my.racv.com.au/s/motor-Insurance?p=CRCP) that showed the car’s registration number and the description “2019 MITSUBISHI ECLIPSE CROSS (	White) STATION WAGON MY19 ES (2WD) 1.5 LITRE Turbo Petrol”; and
e	search on the Livemarket website (https://livemarket.autogate.co/valuations/details/240998429) that showed the car’s registration number and the description as “2019 MITSUBISHI ECLIPSE CROSS ES YA MY19”.
THE TRIBUNAL’S FINDINGS AS TO THE EVIDENCE
62	The parties do not dispute that at the time Ms Loughnan took delivery of the car in late October 2019, RACV’s search showed that the MY of the car was incorrectly recorded as being MY18.
63	Ms Loughnan alleges that Werribee Mitsubishi had caused the error. Upon considering the evidence, I am not satisfied that it did.
64	Based on the evidence, I make the following findings:
a	I am not satisfied that the error was caused or created by the Werribee Mitsubishi.
b	Regardless of whether or not Werribee Mitsubishi caused or created the error, I am not satisfied that the error is ongoing. 
c	Ms Loughnan has failed to provide satisfactory evidence that as at the time of the hearing, the error was still recorded on RACV’s database or on any other third party’s database. Other than alleging that a dealership indicated to her in June 2020 that the error had not been rectified, Ms Loughnan did not provide any evidence from the RACV, VicRoads, NEVDIS or any other entity that the error was ongoing.
d	In contrast, evidence presented by Werribee Mitsubishi showed that the RACV, VicRoads and other third parties have been able to determine the car as a MY19 car. 
e	Given the absence of evidence refuting Werribee Mitsubishi’s evidence, I am unable to accept Ms Loughnan’s assertion that the error persists. 
f	I am not satisfied that Werribee Mitsubishi has engaged in any acts of forgery, falsification or deceit as alleged by Ms Loughnan. The fact that there was an error in recording the car’s MY on a third party’s database does not establish that there have been any such acts. Neither does the fact that at the time of the handover, staff of Werribee Mitsubishi incorrectly recorded the registration number of the car in the handover report, a mistake which was eventually corrected. Acts of forgery, falsification or deceit require a level of intention such as to manipulate, tamper or fudge the information in question. Ms Loughnan provided no satisfactory evidence that Werribee Mitsubishi had the requisite intention. Accordingly, I also do not accept that Werribee Mitsubishi “knowingly inflicted” the error onto her, as she alleges.
g	I do not accept Ms Loughnan’s allegation that Werribee Mitsubishi had supplied her with an “illegitimate car”. The occurrence of the error did not make the car illegitimate. 
h	I am not satisfied that Werribee Mitsubishi’s conduct has been “disgusting” as alleged by Ms Loughnan.
i	Even if I am wrong and I should have found that Werribee Mitsubishi caused or created the error, Ms Loughnan has failed to present any satisfactory or sufficient evidence that the error:
i	Has caused the car to “unfairly depreciate” or to depreciate at all.
ii	Will cause her to any suffer loss and damage in the resale of the car or for insurance purposes.
iii	Has caused her to be “ripped off” by Werribee Mitsubishi in the sum of $29,490.00 or to be “financially destroyed”. Rather, I struggle to consider what else Werribee Mitsubishi could have done to try and resolve the error.
65	Further, I am satisfied that the evidence shows that once Ms Loughnan notified Werribee Mitsubishi of the error, Werribee Mitsubishi, on a number of occasions, attempted to have the error rectified, and once the error had been rectified, to explain to her that the error had been rectified.
66	Having made findings about the parties’ evidence, I must now turn to the causes of action that Ms Loughnan appears to be relying on.
67	But before I do so, I wish to make the following pertinent points:
a	The issue before me which I need to determine is a narrow and focused one. It is whether Ms Loughnan has proven her claim against Werribee Mitsubishi. I need not determine, for example, whether or not Ms Loughnan ought to have received assistance from the State and Federal Governments or the UK Government or that CAV and/or other third parties made an error in investigating or failing to investigate Werribee Mitsubishi.
b	The onus is on Ms Loughnan to prove, based on evidence and on the balance of probabilities, that Werribee Mitsubishi has breached the relevant law.
c	The law prevents me from acting as Ms Loughnan’s advocate or to assist her in the proceedings such that I am no longer an impartial decision maker. This means that I am unable to determine her claim based on an area of the law that Ms Loughnan did not raise, whether expressly or implicitly, or by speculating on what other evidence that she may have had in support of her claim which she did not present to the Tribunal.
THE APPLICANT’S CLAIM UNDER S 18 OF THE ACL
68	I dismiss Ms Loughnan’s claim against Werribee Mitsubishi under s 18 of the ACL because:
a	I am not satisfied that Werribee Mitsubishi has engaged in any conduct, in trade or commerce, that has misled or deceived or is likely to have misled or deceived Ms Loughnan.
b	As I have found, the error was caused or created by a third party.
c	In any event, I am not satisfied that Ms Loughnan has suffered loss and damage as she claims.
the applicant’s claim under s 20 of the acl 
69	The action for unconscionable conduct under s 20 of the ACL is in essence a recognition of the common law (in the broader sense to include equity), as defined as the “unwritten” law of Australia. 
70	I dismiss Ms Loughnan’s claim against Werribee Mitsubishi under s 20 of the ACL because I am not satisfied that Werribee Mitsubishi has engaged in any unconscionable conduct in its dealings with Ms Loughnan. In this regard, I refer to my findings of the parties’ evidence as stated above, including Werribee Mitsubishi’s conduct throughout the dispute. 
71	Further, in reference to the various considerations that a decision maker takes into account when determining this cause of action:
a	I am required to determine whether the whole course of dealing between the parties has been such that responsibility for Ms Loughnan’s alleged loss should be ascribed to unconscientious conduct on part of Werribee Mitsubishi.  I am not satisfied that Werribee Mitsubishi has taken unconscientious advantage of Ms Loughnan such that her will was overborne so that her actions were not independent or voluntary.
b	Alternatively, I am not satisfied that Werribee Mitsubishi has taken unconscientious advantage of Ms Loughnan such that Ms Loughnan, though not deprived of an independent and voluntary will, was unable to make a worthwhile judgment as to what was in her best interest.
c	The evidence draws me to conclude that there has been no dishonesty or unfairness as the law considers in the realm of unconscionability that renders Werribee Mitsubishi liable. I also find that Werribee Mitsubishi’s conduct was not in breach of good conscience or irreconcilable with what is right and reasonable. Rather, I find that its conduct has been what one could reasonably expect from the respondent in its ordinary and undistinguished course of its business.
d	Leaving aside the issue of liability, Ms Loughnan has failed to prove that she has suffered loss and damage as she has alleged.
the applicant’s claim under s 21 of the acl 
72	In theory at least, the action for unconscionable conduct under s 21 of the ACL has broader applications than under s 20 of the ACL, in that there may be wider forms of conduct that may breach the section (see s 21(4) of the ACL). 
73	Notwithstanding the broader application of s 21 of the ACL, I am not satisfied that Werribee Mitsubishi has breached s 21 of the ACL.
74	For the reasons that I have already provided in respect of s 20 of the ACL, I am not satisfied that Werribee Mitsubishi has engaged in conduct, in all the circumstances, that is unconscionable. I therefore dismiss Ms Loughnan’s claim under s 21 of the ACL.
the applicant’s claim under s 55 of the acl 
75	I dismiss Ms Loughnan’s claim against Werribee Mitsubishi under s 55 of the ACL because I am not satisfied that Werribee Mitsubishi breached its guarantee that the car was reasonably fit for any disclosed purpose, and for any purpose for which Mitsubishi Werribee represented the car was reasonably fit for.
76	In essence, s 55 of the ACL is concerned with whether the goods in question satisfy the purpose for which the goods were acquired or were represented to do by the supplier. 
77	At no time did Ms Loughnan allege or give evidence that other than the error, the car had faults or issues such that it could not be driven or did not do what the car was supposed to do, or as represented by Werribee Mitsubishi it would do.
78	There was no evidence led that the car could not be registered or was undrivable. There was an error with a description of the car’s MY. That did not make the car an illegitimate or unlawful car. The error is that the car was misdescribed or recorded on some databases as a MY18 car rather than a MY19 car. 
79	Further, Ms Loughnan did not present any evidence to prove that the car could not be insured at all.
the applicant’s claim under s 56 of the acl 
80	I dismiss Ms Loughnan’s claim against Werribee Mitsubishi under s 56 of the ACL as I am not satisfied that the car does not correspond with the description of the car.
81	The parties agree that the car is a MY19 car. The labelling on the car correctly identifies this. The error was shown on a third party’s database and not on the actual car.
the applicant’s claim under s 60 of the acl 
82	I am not satisfied that in Werribee Mitsubishi providing its services to Ms Loughnan, it failed to render its services with due car and skill. As I have found, Werribee Mitsubishi: 
a	did not cause or create the error;
b	attempted to have the error rectified; 
c	informed Ms Loughnan that the error had been rectified; and
d	on a number of occasions attempted to explain to Ms Loughnan that the error had been rectified.
83	Even if I am wrong on the matters outlined in the preceding paragraph, I am not satisfied that Ms Loughnan has suffered loss and damage as she alleges.
84	Accordingly, I dismiss Ms Loughnan’s claim under s 60 of the ACL.
conclusion
85	It is clear to me that Ms Loughnan feels greatly aggrieved and believes that Werribee Mitsubishi has breached the law. Whilst I acknowledge that Ms Loughnan genuinely feels that she has been wronged, I must determine, and have determined, her claim against the respondent based on the evidence before me and on the applicable law.
86	In spending considerable time going through the evidence and considering the applicable law, I am not satisfied that Ms Loughnan has proven, on the balance of probabilities, that Werribee Mitsubishi has engaged in any unlawful conduct or that Ms Loughnan has suffered any loss or damage as she alleges by reason of the Werribee Mitsubishi’s conduct. I therefore dismiss her claim against the respondent.

D. Kim
Member