Ford Motor Company of Australia Pty Ltd v Capic

PERRAM J: 1 On 24 February 2022, I granted Ms Capic leave to cross-appeal. When the question of appeals was raised some months ago I indicated that I would grant leave to appeal to any party that wished to appeal. Initially both parties thought that it would be possible to launch a narrow appeal in which my conclusions about the proper construction of s 54 of the Australian Consumer Law (being Sch 2 to the Competition and Consumer Act 2010 (Cth)) might be tested along perhaps with some other discrete issues. Ford Motor Company of Australia Pty Ltd ('Ford') formulated a notice of appeal which was thought at the time to achieve that purpose (although Ms Capic now denies that that is its effect) and, on 21 December 2021, I granted it leave to appeal. Subsequently, Ms Capic has now formulated a proposed notice of cross-appeal and sought leave to file it. She has also filed a notice of contention in Ford's appeal. Whilst not opposing the grant of leave for Ms Capic to cross-appeal, Ford's solicitors did point out to me that the proposed cross-appeal appeared to raise factual matters which might well complicate the appeal. 2 I am not the judge managing the appeals and my role is only that of a trial judge who has indicated that he will grant leave to appeal. I do not think that there is any basis on which I could refuse Ms Capic's application for leave to cross-appeal since it raises appeal grounds of substance which she should be entitled to put forward. The management consequences for the conduct of the Full Court hearing are not legitimate inputs into the discretion to grant leave to appeal, particularly where I have always been clear that I would grant leave to appeal if either party asked for it. 3 Some efforts were being made to get the appeal, as it was then understood, into the May Full Court sittings for 2 or 3 days. Having sat through six weeks of evidence in this case, I do not think that once factual matters are raised in the appeal, that there is any prospect of the appeal being conducted in 2-3 days. My impression, for what it is worth, is that explaining to the Full Court the intricacies of the mechanical engineering in this case will be a very significant undertaking. There is also an issue about the manner in which the trial was run on those mechanical engineering issues. I confined Ms Capic to her case on these issues largely to the evidence of Dr Greiner: Capic v Ford Motor Company of Australia Pty Ltd [2021] FCA 715 at [55]-[58] and [928]-[955]. It is said that I erred in doing so. This will involve the Full Court engaging in an archaeological excavation of the manner in which the trial was conducted. Exploring on appeal just how the six week trial was in fact conducted, and whether I erred in confining Ms Capic to her case as expressed through the evidence of Dr Greiner, will be an elaborate and lengthy process. Not until the submissions are in will it be possible to hazard a guess as to how long the appeal might take, but as presently advised I would not be surprised if it took 10 days. 4 Now that Ms Capic has entered the fray on the facts, and in particular on the so-called 'Architectural Deficiencies', there is then the further difficulty that Ford tried to avoid touching on the facts in its notice of appeal since it understood itself to be seeking to craft an appeal which would result in a relatively isolated legal question. Now that that endeavour has ended in failure, it is likely that Ford will seek to amend its notice of appeal for which, from my perspective, it could hardly be blamed. 5 Because the parties have been back before me on several occasions since the question of leave to appeal was first raised, issues have now begun to arise before me which are properly the province of the judge managing the appeal. It is difficult for me, and embarrassing for the parties, for me to have slid into the role of a de facto appeal management judge. At the end of the day, I am the trial judge and my role, at least in relation to the appeal, is now thankfully at an end since I have granted leave to appeal to both parties. I have made arrangements for a new judge to be assigned to manage the appeals. I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Perram.