Ibrahim v Kia Australia Pty Ltd and Ryde Automotive Group trading as Ryde Kia

Initial factual background and the commencement of Tribunal proceedings

1. On or about 1 December 2023, the consumer purchased a Kia MV EV9 Earth Long Range AWD Auto Wagon ("the vehicle"), with model year 2024, from the second respondent. The first respondent is the manufacturer of the vehicle. The consumer paid $117,370.00 for the vehicle and took delivery of it on 13 December 2023.
2. On or about 29 January 2024, the consumer received a call from his father-in- law who had used the vehicle that day. The consumer was told that the vehicle was unresponsive and unable to be unlocked using the electronic key for it. Some days later, a road side assistance mechanic from Kia Support inspected the vehicle and replaced the 12 volt battery in the vehicle.
3. On or about 19 March 2024, the vehicle had an identical failure to the one mentioned above. On this occasion, a different mechanic from Kia Support attended the vehicle and jump started it.
4. The next day, the vehicle experienced the same failure again. A third mechanic from Kia Support attended to the vehicle, jump started it, and then delivered the vehicle to the first respondent for diagnosis and repair.
5. On 26 March 2024, the consumer commenced proceedings in the Tribunal seeking orders for the vehicle to be returned to the first respondent and for a refund of the purchase price he had paid for the vehicle.
6. On or about 5 April 2024, the first respondent contacted the consumer. The consumer was told that, while no specific fault was able to be identified, an upgrade to software for the vehicle's computer system had been installed which had rectified the issue and that the vehicle was ready for collection.
7. The consumer refused to collect the vehicle.
8. On 11 April 2024, the Tribunal made directions, in the proceedings that had been filed by the consumer, for the parties to file and serve their evidence that they would rely upon in the hearing.

The hearing, the evidence, the application for miscellaneous matters and the Tribunal's decisions

1. The hearing at first instance took place on 11 April 2024 and 7 June 2024.
2. The consumer's case at the hearing was that the second respondent had failed to comply with s. 54 of the Australian Consumer Law NSW (ACL), as the vehicle was not of acceptable quality (ACL s. 54(2)), and further, that the failure was a major failure within the meaning of s. 260 of the ACL. The respondents disputed the claim and sought for the application to be dismissed.
3. At the hearing at first instance, the consumer relied upon his own affidavit himself which recorded his history with the vehicle. He also included posts from social media from other owners of vehicles of the same model as that purchased by the consumer. The Tribunal, in its reasons for decision, gave the social media posts little weight.
4. The consumer relied on a report from Mr. Gregory Organ. In its reasons for decision, the Tribunal said of the report that it was "to say the least, unusual for an expert report in that it does not report upon the inspection of the vehicle nor the resulting identification of any fault. Rather, the report is a treatise of media reporting of the faults of the vehicle type, intermixed with the writer's opinions on the application of the ACL to the vehicle. There is nothing however, to indicate that Organ is legally qualified. Accordingly, the report was of very little utility to the Tribunal in determining the application."
5. On behalf of the second respondent, oral evidence was given about initial testing showing that the vehicle's 12 volt battery system did have very low voltage. When the fault was reported to the first respondent, it acknowledged that the fault was a known fault with the type of vehicle that the consumer had purchased and the fault was corrected in most cases by the application of a software update to the vehicle's computerised control system.
6. The software upgrade was downloaded to the vehicle's computerised control system. Over the next four to five weeks (because the consumer did not collect the vehicle and it remained in the possession of the second respondent), the second respondent tried to replicate the power drain fault in the vehicle and its oral evidence was that the fault could not be replicated.
7. The Tribunal reserved its decision.
8. On 18 July 2024, the consumer filed an application for miscellaneous matters. We shall return to this application further below.
9. On 19 July 2024, the Tribunal made final orders and published its reasons for decision.
10. In its decision, the Tribunal explained that it was satisfied that the consumer was making a consumer claim (Fair Trading Act 1987 (NSW) s. 79E) and that the first respondent was a supplier and the second respondent a manufacturer. The Tribunal was satisfied that it had jurisdiction to determine the claim and had that jurisdiction notwithstanding that the value of the claim was over $100,000.00 (Fair Trading Act s. 79S(6)(a)).
11. The Tribunal set out in its decision the legal principles to be applied when considering a claim under s. 54 of the ACL.
12. In applying the relevant legal principles to the evidence before it, the Tribunal accepted that the vehicle had suffered from a defect pertaining to its 12 volt battery causing it, occasionally and intermittently, to discharge to levels where the remaining current was inadequate to power even the vehicle's unlocking system. The Tribunal found (at [38]) that the applicant's evidence did not establish that the repairs done to the vehicle were inadequate or that the defect would recur following the software update.
13. The Tribunal's decision recorded at [38]:

"The applicant has not provided evidence establishing that the repairs done to the vehicle have been inadequate, or to support the applicant's subjective assertions that the problems will continued [sic] to occur following the software upgrade. Based upon the evidence of Ryde Kia that persistent attempts made over four to five weeks following the installation of the software upgrade could not rectify [sic] the 12 volt electrical system defect, I consider it entirely possible that Ryde Kia's one and only attempt to rectify the defect was successful."

1. The first use of the word "rectify" in that passage appears to us to be a typographical error; the reasons for decision at [26] suggest that "replicate" was the word the Member intended rather than "rectify."
2. The Tribunal stated (at [39]) "... it is impossible for me to find, on the balance of probabilities, that the teething problems within the vehicle complained of have not been addressed under warranty." The Tribunal found that the consumer's subjective dissatisfaction with the vehicle was insufficient to establish his claim under s. 54 of the ACL. The Tribunal was not satisfied that a reasonable consumer, fully acquainted with the state and condition of the vehicle, would regard it as not acceptable, having regard to the matters set out in s. 54(3) of the ACL.
3. The Tribunal found that no breach of s. 54 of the ACL was established and there was therefore no entitlement to remedies under ss. 259 - 263 of the ACL or s. 79N of the Fair Trading Act. The Tribunal made an order on 19 July 2024 dismissing the application.
4. Returning now to the application for miscellaneous matters that had been filed on 18 July 2024, in that application, the consumer sought for the Tribunal member "to consider the additional submission." The submission was that, at 8.45 a.m. on the morning of 18 July 2024, the vehicle did not start again. The consumer called Kia Roadside Assistance. That service diagnosed a flat 12 volt battery and the roadside assistance technician jumpstarted the vehicle. The submission stated that this was now the fourth time that battery had gone flat and "The fault is relevant as it demonstrates that it is an ongoing fault."
5. At 1.46 p.m. on 19 July 2024, the consumer sent an email transmission to the registry of the Tribunal, asking for his 18 July 2024 submission to be brought to the attention of Member Mortensen as it "does not appear to be considered when the member made their order."
6. On 25 July 2025, Member Mortensen made an order "The application to set aside or vary the orders made in this matter 19 July 2024 in consideration of additional submissions now made is refused." The Member gave written reasons for the refusal, stating that a final decision had been reached, that it had discharged its statutory power or duty, and that the limited statutory power under s. 63 of the Act to amend a decision after it was made did not apply to the circumstances of the miscellaneous matters application. The Tribunal also decided that its power under s. 9 of the Civil and Administrative Tribunal Regulation 2022 (NSW) was not applicable to the circumstances of the miscellaneous matters application.
7. The decision on the miscellaneous application was not, so far as we are aware, the subject of any appeal by the consumer.

1. On 18 March 2025, the consumer filed a Notice of Appeal against the decision dated 19 July 2024 and stated to have been received on 22 July 2024.
2. The grounds of appeal relied upon by the consumer were as follows:

"At the time of the hearing the 12v system failure occurred 3x. It has since occurred 5x. The 4th time it occurred was between the hearing date and the date of decision, however, as it occurred one day before the member made the decision I suspect there was insufficient administrative time for NCAT to provide the member with the evidence of the 4th occurrence. The 5th occurrence occurred on the 28/2/25."

1. The Notice of Appeal sought an order that "the respondent" provide a full refund of the purchase price of the car, compensation for direct and indirect costs incurred by the consumer "secondary to the vehicle faults" and a written apology.
2. The Notice of Appeal identifies that the consumer is seeking leave to appeal and advances two matters in support of the application for leave to appeal; the first being the alleged recurrence of the 12 volt failure on 18 July 2024 which the consumer had brought to the attention of the Member through the application for miscellaneous matters and the second being another alleged recurrence of the 12 volt battery failure on 28 February 2025.
3. At p. 3 in the Notice of Appeal the consumer states that, following the 28 February 2025 12 volt battery system failure, he received legal advice to appeal "the decision".
4. The Notice of Appeal then indicates that in seeking leave to appeal, there is "significant new evidence that was not reasonable available at the time of the hearing." The "new evidence" consists of three documents relevant to "occurrence number 4" on 18 July 2024 and three documents relevant to "occurrence number 5."
5. This evidence was stated in the Notice of Appeal not to have been available at the time of hearing because "the ongoing nature of the problem with this car is unpredictable and erratic."
6. The Notice of Appeal acknowledges that the consumer needs an extension of time to bring the appeal. The reason given for why the extension is sought is because "the issue with the car is infrequent and unpredictable. The 4th occurrence of 12v system fault occurred one day before the decision was made ... The fifth occurrence of 12v system fault occurred on 28 February 2025, this occurred after the hearing, yet is significant supplementary evidence to prove that the issue has not been resolved."
7. Apart from the Notice of Appeal, the consumer filed a bundle of documents on 18 March 2025, as part of the appeal proceedings. The bundle includes the Tribunal's decision dated 19 July 2024, an email transmission chain between the consumer and the registry relating to the consumer's application for miscellaneous matters dated 18 July 2024, a Kia service report for "event number 4", a Kia service report for "event number 5", photographic evidence of the dead battery during roadside assistance testing on "event number 5" and "contemporaneous notes of event number 5."
8. At the hearing before the Appeal Panel, the Appeal Panel granted the consumer leave to rely upon a bundle of documents filed on 1 July 2025 with the appeals registry. This bundle included documents outlining "a further failure of the vehicle's 12V battery system which occurred on 27 June 2025."
9. In his oral submissions at the Appeal Panel hearing, the consumer submitted that the Tribunal's website was confusing and it was not clear to him whether he should lodge an appeal or apply to vary the Tribunal's orders. When questioned by the Appeal Panel about his delay in filing his Notice of Appeal, the consumer stated that it was "only after the fifth event" that he sought legal advice about lodging an appeal. The consumer submitted that the new evidence he sought to rely upon showed that the Tribunal had "made an assumption" that the electrical problem with the vehicle was fixed, when it was not fixed. The consumer submitted that the reasoning of the Tribunal was not adequate.
10. The respondents did not file any reply to the Notice of Appeal or any submissions. In their oral submissions at the Appeal Panel hearing, the respondents submitted that there was no error in the Tribunal's decision, complained that the consumer was relying on events alleged to have taken place after the hearing had concluded and submitted that there was "lots of information" on NCAT's website about how to lodged an appeal.
11. No transcript of the Tribunal proceedings on 11 April and 7 June 2024 has been provided to us.

1. Under cl 25(4)(c) of the Civil and Administrative Tribunal Rules 2014 ("the Rules") the Notice of Appeal should have been lodged ordinarily within 28 days of the consumer receiving the Tribunal's decision.
2. The Notice of Appeal states the consumer received the decision on 22 July 2024 but the material the consumer put before the Appeal Panel shows that the consumer received the Tribunal's decision on 19 July 2024: see in the consumer's bundle lodged on 18 March 2025 the email transmission dated 19 July 2024 at 1.46 p.m. from the consumer stating that the order and the written reasons do not refer to the consumer's 18 July 2024 "submission."
3. The Notice of Appeal was lodged on 18 March 2025.
4. The consumer properly applied for an extension of time in section 7 of the Notice of Appeal form.
5. Section 41 of the Act provides:

"(1) The Tribunal may, of its own motion or on application by any person, extend the period of time for the doing of anything under any legislation in respect of which the Tribunal has jurisdiction despite anything to the contrary under that legislation.

(2) Such an application may be made even though the relevant period of time has expired."

1. The principles by which the power provided for in s. 41 of the Act should be exercised are well-established, and are recorded in authorities such as Jackson v Land and Housing Corporation [2014] NSWCATAP 22 at [18] - [22], Gallo v Dawson [1990] HCA 30; 93 ALR 479 at [2] and Nanschild v Pratt [2011] NSWCA 85 at [39].
2. The starting point is that procedural rules of the Tribunal, such as Rule 25(4)(c), should be obeyed, just as the procedural rules of a court should be obeyed: Ratnam v Cumarasamy (1965) 1 WLR 8 at p. 12 cited with implicit approval in Gallo v Dawson [1990] HCA 30 at [2] per McHugh J.
3. The burden of proof lies on the applicant for the extension of time to establish that there are proper grounds to grant the application for the extension of time: Tomko v Palasty (No 2) [2007] NSWCA 369; (2007) 71 NSWLR 61 at [80] per Basten JA.
4. As explained in Jackson, supra at [22], generally, in an application for an extension of time to appeal, the Appeal Panel will be required to consider:

(1) The length of the delay;

(2) The reason for the delay;

(3) The appellant's prospects of success, that is usually whether the applicant has a fairly arguable case; and

(4) The extent of any prejudice suffered by the respondent to the appeal.

1. The length of delay in bringing the application for an extension of time in which to appeal here is significant. The application has been brought nearly eight months out of time. That time is significant when measured against the 28 days provided for in cl 25(4)(c) of the Rules. The Tribunal is being asked to enlarge, by many months, the 28 day period provided for in cl 25(4)(c) of the Rules.
2. The length of delay tells substantially against granting the extension of time sought.
3. Turning next to the reasons of the delay in lodging the Notice of Appeal, as noted above, in the Notice of Appeal, when setting the reasons that he sought an extension of time, the consumer submitted that "the issue with the car is infrequent and unpredictable" and then cited an occurrence of the 12 volt system alleged defect one day before the Tribunal's orders were made and reasons published and an occurrence of the same fault alleged on 28 February 2025.
4. An occurrence of the 12 volt system alleged defect, alleged to have taken place one day before the Tribunal's orders were made and reasons published, does not and cannot, as a matter of logic, explain why the consumer did not lodge his Notice of Appeal against the 19 July 2024 decision in the time identified in cl 25(4)(c) of the Rules.
5. A further occurrence of the vehicle's 12 volt system alleged defect, alleged to have taken place on 28 February 2025, does not and cannot explain why the consumer did not lodge this Notice of Appeal against the 19 July 2024 decision in the time identified in cl 25(4)(c) of the Rules. An event taking place on 28 February 2025 is a fresh event taking place: (a) long after the consumer filed his application on 26 March 2024, (b) long after the time allowed by the Tribunal for the parties to have filed and served their evidence to be relied upon at the hearing, (c) long after the hearing itself (11 April 2024 and 7 June 2024), and (d) long after the orders and decision of 19 July 2024. A fresh event taking place on 28 February 2025 does not seem to us to explain, in any relevant way, why the consumer did not, for example, investigate the prospects for bringing an appeal, prepare or lodge, or perhaps mistakenly decide not to lodge, a notice of appeal against the 19 July 2024 decision, in the time identified in cl 25(4)(c) of the Rules.
6. There was no evidence before the Appeal Panel showing that NCAT's website contained material about lodging appeals that was not clear, but in any event the consumer accepted, as we understood his submissions, that he only turned his mind to the question of an appeal after 28 February 2025.
7. As for the explanation for the delay, there is no material put forward by the consumer suggesting he was under some impediment that prevented him from lodging his Notice of Appeal within the time provided for in cl 25(4)(c) of the Rules.
8. Indeed, in oral argument during the Appeal, the consumer said, in answer to a question as to why he didn't appeal within time if unhappy with the findings on the evidence in [38]-[39] of the original decision, that he didn't think about it and was unhappy with his expert's report which he said was gobbledegook and showed diagnostic uncertainty like in medicine (we understood, the consumer to be a medical practitioner). He also said that he had not reviewed [38] in the Tribunal's decision at first instance "with a fine tooth comb" and only undertook such a review "after the fifth occurrence."
9. There is also the material before us from the consumer (see p. 3 in the Notice of Appeal) which suggests that the circumstance that prompted the appeal was the 28 February 2025 alleged recurrence of the 12 volt system alleged defect, which led to the consumer obtaining legal advice and a recommendation that the consumer lodge an appeal.
10. Perhaps the further occurrence of the 12 volt system alleged defect on 28 February 2025 did lead to the consumer to obtain legal advice and then a recommendation from lawyers that he appeal against the 19 July 2024 decision, which recommendation the consumer then acted on three weeks later, but it says little about the reason, or reasons, for the consumer not instituting the appeal within 28 days of his receipt of the Tribunal's reasons, let alone filing the notice of appeal, say, a few weeks or so after the time identified in cl 25(4)(c) of the Rules had expired.
11. We do not therefore regard the reasons given by the consumer in his Notice of Appeal or in his oral submissions, for why he requires an extension of time, to be pertinent, for the purposes of the question before us as to how we should exercise the discretion afforded by s. 41 of the Act in the circumstances of this case.
12. In our view, the consumer has not provided any adequate explanation of his delay in lodging the Notice of Appeal. The lack of material providing an adequate explanation of the delay weighs substantially against granting an extension of time: Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175 at [103].
13. As to the extent of any prejudice suffered by the respondent, there is some prejudice to the respondents that goes beyond the inconvenience of having to prepare for and appear at the appeal. The second respondent is a supplier of motor vehicles and the first respondent is the manufacturer of motor vehicles. If it were the case that the second respondent had failed to comply with the ACL consumer guarantees in the case of the vehicle, and the failure is a major failure (ACL ss. 259 and 262), the interests of justice are in favour of the consumer having the opportunity to have the merits of his claim determined at a final hearing, in circumstances where both parties have an opportunity to tender evidence. But there is prejudice to the supplier and manufacturer of such a vehicle having to face a succession of claims by the consumer based on the same alleged underlying defect in relation to the one particular vehicle. The prejudice weighs against granting an extension of time to file the Notice of Appeal.
14. We turn next to consider the consumer's prospects on the appeal.
15. The basis upon which appeals from decisions of the Tribunal may be brought are identified in s. 80 of the Act. Section 80 of the Act states that an appeal may be made 'as of right on any question of law, or with leave of the Appeal Panel, on any other grounds' (s. 80(2)(b) of the Act). Where an appeal is not available as of right, the Appeal Panel must be satisfied that the requirements set out in cl 12 sch 4 of the Act are established before granting leave to appeal.
16. The meaning of a "question of law" was discussed in detail by the Appeal Panel in Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 (Cusumano) at [25]-[40]. Examples of questions of law include the matters set out in Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [13] and _Cusumano a_t [32]. However, the categories of question of law are not closed. As was stated at Cusumano at [37]-[39]:

"What constitutes a question of law is vexed and context dependent in the sense that the distinction between matters of fact and of law may turn on the circumstances in which the question arises: Targeted Property Investments Pty Ltd v Look Up Technologies Pty Ltd (No 2) [2023] NSWSC 416 at [33(4)], citing Thomas and Naaz [2023] NSWCA 40 at [52] and Da Costa v The Queen [1968] HCA 51; (1968) 118 CLR 186 at 194; [1968] HCA 51.

For instance, a ground of appeal that raises the question whether there were adequate reasons may constitute an attack on the merits which would not raise a pure question of law. On the other hand, it may be a contention that the decision is unreasonable in the requisite sense or that the Tribunal failed to exercise the jurisdiction, which would likely raise a question of law: see the exposition of this issue in Wollondilly [Shire Council v Styles [2024] NSWCATAP 104] at [28]-[32]. Care must in any event be taken. As has been clarified by amendment to the NCAT Act since Prendergast was decided, the Tribunal is not required to give reasons for all decisions it makes: NCAT Act, s 62(2A; see too: New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231 at [53]-[54], [109]-[114].

Therefore, discernment and care must be taken to ensure the grounds relied upon by the appellant, properly understood, raise questions of law and arise in the proceedings; or whether leave is required."

1. Clause 12 of Sch 4 of the Act provides that the Appeal Panel may grant leave to appeal a decision from the Consumer and Commercial Division (CCD) pursuant to s. 80(2)(b) of the Act, only if it is satisfied that the appellant may have suffered a substantial miscarriage of justice because:

(1) the decision of the Tribunal under appeal was not fair and equitable; or

(2) the decision of the Tribunal under appeal was against the weight of evidence; or

(3) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).

1. The Appeal Panel considered the meaning of a substantial miscarriage of justice for the purposes of cl 12 of sch 4 of the Act in Collins v Urban [2014] NSWCATAP 17 at [76], stating that a substantial miscarriage of justice may have been suffered:

... where there was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance.

1. The principles to be applied by an Appeal Panel in determining whether leave to appeal should be granted are well settled. In Collins v Urban the Appeal Panel concluded at [84] that:

(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: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45];

(2) Ordinarily it is appropriate to grant leave to appeal, only in matters that involve:

(b) questions of public importance or matters of administration or 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; or

(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 interests of justice for it to be reviewed.

1. The consumer's Notice of Appeal did not identify any errors of law in the Tribunal's decision under Appeal. During the oral argument in the Appeal, the consumer challenged [38] in the Tribunal's decision at first instance and developed a submission, as we understood it, that the Tribunal's reasons there were not adequate.
2. Where a party is a self-represented non-legally trained appellant, the grounds of appeal may be considered generally by the Appeal Panel (subject to procedural fairness considerations) to determine whether a question of law has been raised: Simjanovska v Dogan [2023] NSWCATAP 69 at [78]; Prendergast at [12]).
3. Where the Tribunal's reasons are inadequate, that may provide a basis for an error of law to be discerned in the Tribunal's reasons: see for example NSW Land and Housing Corporation v Orr [2019] NSWCA 231, by Bell P (as the Chief Justice of NSW then was), with whom Ward JA (as the President of the Court of Appeal then was) agreed. However, [38] in the Tribunal's reasons at first instance show that the Tribunal engaged with the evidence before it, evaluated that evidence and articulated the reason that the Tribunal reached its finding. We do not view the reasons expressed at [38] in the Tribunal's reasons at first instance as reasons lacking in adequacy. Nor do we regard it as accurate to characterise the Tribunal as simply making an assumption that the 12 volt battery system problem in the vehicle had been fixed. The Tribunal's reasons show that it reached its finding on the basis of its evaluating the consumer's and the respondents' evidence that the parties had placed before the Tribunal, and not simply on the basis of assumption. We do not regard the consumer as establishing an error of law in the Tribunal's decision.
4. The consumer's Notice of Appeal, and his oral submissions during the Appeal hearing, did not suggest that the decision of the Tribunal under appeal was not fair and equitable or was against the weight of evidence.
5. However, the consumer's Notice of Appeal, and his oral submissions during the Appeal hearing, did suggest that there was significant new evidence that had arisen, being evidence that was not reasonably available at the time the proceedings under appeal were dealt with. The consumer pointed to three alleged failures of the vehicle's 12 volt battery system on 18 July 2024, 28 February 2025 and 27 June 2025, as the "significant new evidence that had arisen."
6. In the circumstances of this case, evidence relating to the performance of the vehicle's 12 volt battery system on 18 July 2024, 28 February 2025 and 27 June 2025 is not the "significant" new evidence that Clause 12(1)(c) of Sch 4 contemplates. Our interpretation of clause 12 is that it applies to evidence concerning the matters the subject of the hearing at first instance where that evidence was not reasonably available at that time.. The last day of the hearing at first instance took place on 7 June 2024. Evidence relating to the performance of the vehicle's 12 volt battery system on 28 February 2025 and 27 June 2025 is therefore evidence relating to fresh events which occurred after the final orders were made and reasons for the orders were published. As to evidence relating to the performance of the vehicle's 12 volt battery system on 18 July 2024, from the documents placed before us, we are satisfied that the application for miscellaneous matters came to the attention of the member only after the orders and reason for decision were published on 19 July 2024
7. There was nothing in the further evidence which connected it probatively to the matters determined in the hearing at first instance, such as evidence (expert or other) that the further events were a continuation of the same defect for the same reasons. Arguably such evidence may have brought the later events within cl 12(1)(c) if (for example) it was not possible for an expert report at the time of the hearing to say with certainty that there would be future recurrences. That is not the case here.
8. In the event that we are in error in that interpretation of Clause 12(1)(c) of Sch 4, in our view the consumer has not established that he may have suffered a substantial miscarriage of justice. The consumer had the opportunity at the hearing at first instance to tender expert or other evidence establishing the defect in the vehicle's 12 volt battery system. The consumer had the onus of proving the breach of the consumer guarantee provided for by ACL s. 54. The consumer relied principally upon Mr. Organ's report, which he then described in critical terms during the hearing before us, as we have already mentioned. For the reasons given by the Tribunal in its decision, that report was not persuasive. The consumer did not adduce any evidence that contradicted the respondents' evidence about their diagnosis of the battery system's issue, the new software that was downloaded to the vehicle and the testing process that then ensued which on the respondents' evidence resolved the alleged defect.
9. Following the conclusion of the proceedings at first instance, the consumer now wants to bring evidence of further alleged instances of the vehicle's 12 volt battery system malfunctioning before the Appeal Panel so as to seek (without more than that evidence of malfunctioning) to demonstrate, as we understand it, that the "teething problems" suffered by the vehicle were not successfully addressed by the respondents as was contended in the respondents' evidence. The problem with that approach is, as already explained, that the evidence is insufficient for the task and it is not established that the further evidence required to make it sufficient was not reasonably available at the original hearing.. As was explained in Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1 at 7 per Gibbs CJ, Wilson, Brennan and Dawson JJ:

"It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at trial. If it were not so the main arena for the settlement of disputes would move from the court at first instance to the appellate court tending to reduce the proceedings in the former court to little more than a preliminary skirmish."

1. An appeal is not an opportunity for the losing party to rerun the case with better evidence: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10].
2. The further evidence of alleged battery malfunctioning, with expert or other evidence, may or may not establish a new claim for breach of consumer guarantees (such as a defective battery system for a different reason). That is not for this appeal.
3. Accordingly, it appears to the Appeal Panel that the consumer had little if any prospect of establishing either an error of law in the Tribunal's decision or any proper basis for leave to appeal to be granted. The limited prospect of success weighs substantially against granting an extension of time to file the Notice of Appeal.
4. In our view, the consumer has not established a persuasive basis for the Appeal Panel to exercise its discretion under s. 41 of the Act to allow an extension of the period of time for the Notice of Appeal to be filed.

1. For these reasons, the Appeal Panel is not prepared to grant the consumer an extension of time to appeal. Consequently, the question of leave to appeal does not arise. The appeal itself should be dismissed, being brought out of time and where no extension of time to bring the appeal has been granted by us.
2. The Appeal Panel makes the following orders:

(1) The application for an extension of time in which to appeal is dismissed.

(2) The appeal is dismissed.

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.