Patruno v Ford Motor Company

1. The appeal arises from a decision of the Consumer and Commercial Division of the Tribunal (Tribunal) relating to a consumer claim from 22 November 2024. In the Tribunal proceedings, the appellant (then the applicant) had sought a refund for a used car (demonstrator model), manufactured by the 1st respondent and purchased from the 2nd respondent, in the amount of $84,980.
2. The Appellant alleged the vehicle was not of acceptable quality due to a persistent oil degradation issue, in breach of s 54 of the Australian Consumer Law (ACL) and that the breach was a major failure within the meaning of s 260 of the ACL, as the vehicle lost power without warning when towing.
3. The Tribunal dismissed the appellant's claim and the appellant has appealed to the Appeal Panel from that decision on the grounds that the decision was a substantial miscarriage of justice because the decision was not fair and equitable and against the weight of evidence and significant new evidence has arisen that was not reasonably available at the time of the hearing. Additionally, the Appeal Panel has discerned that the appellant is also raising whether there were adequate reasons by the Tribunal, leading to an error on a question of law.
4. The Appeal Panel has found in favour of the appellant, that the Tribunal's reasons were inadequate, resulting in a constructive failure to exercise jurisdiction.
5. At the appeal proceedings, the appellant was self-represented, the 1st respondent was represented by Mr J Newbound, Customer Liaison Manager of the 1st respondent, and the 2nd respondent did not attend the appeal hearing.

1. The following materials were provided by the appellant to the Appeal Panel.

1. The Notice of Appeal, with attached particulars, was filed on 10 July 2025, within the required time under the Civil and Administrative Tribunal Rules 2014 (NSW) (NCAT Rules), being within 28 days of the day on which the appellant was given written reasons for or notified of the Tribunal's decision, whichever is the later in time (r 25(4)(c) of the NCAT Rules).
2. The appellant indicates in the Notice of Appeal that leave of the Appeal Panel is sought for the appeal under s 80(2)(b) and cl. 12 of sch. 4 to the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) on the basis that the appellant may have suffered a substantial miscarriage of justice because:

(1) The decision was not fair and equitable; and

(2) The decision was against the weight of evidence; and

(3) Significant new evidence had arisen that was not reasonably available at the time of the Tribunal hearing.

1. The appellant filed three bundles of documents.
2. The first bundle was attached to the Notice of Appeal filed on 10 July 2025. The bundle consisted of the following documents:

(1) Correspondence between the parties and others, including the initial email to the 2nd respondent complaining of issues with the car; and

(2) A copy of a brochure for the vehicle, a Ford Ranger Raptor X; and

A copy of the bundle of documents before the Tribunal.

1. The second bundle of documents filed on 26 August 2025 consisted of two volumes with the following documents:

(1) A copy of the evidence bundle before the Tribunal;

(2) A copy of the appellant's written submissions;

(3) A copy of evidence not before the Tribunal, including an expert report by Car Solutions dated 2 August 2025;

(4) A copy of the transcript;

(5) A copy of the appellant's written statement dated 21 August 2025;

(6) A copy of two reports:

(a) A report from the 2nd respondent dated 21 July 2025; and

(b) A copy of the full report from the 1st respondent, relied on at the hearing, with the inclusion of pages the appellant says were not before the Tribunal; and

(7) A USB containing several videos and a copy of the audio recording of the Tribunal hearing.

1. The third bundle of documents filed on 1 October 2025 consisted of the following documents:

(1) A copy of the appellant's submissions in reply; and

(2) A copy of the 1st respondent's submissions in response to the applicant's submissions.

Should the Appeal Panel accept the new evidence from the appellant?

1. It is accepted by both parties that several of the materials submitted by the appellant were not before the Tribunal. As the Appeal Panel stated in Chapman v McLaughin [2016] NSWCATAP 212 at [37]:

... The point of limiting fresh evidence to that which was not reasonably available at the first hearing is to ensure finality of proceedings. This means that it is in the interests of justice for parties to put forward all their evidence as best they can at the hearing, as otherwise, if they were free to add fresh evidence after a case was decided, the proceedings would run the risk of not being finalised until after many hearings. This principle is of particular importance in the Tribunal because of the provisions of s 36 of the Act. That section requires the Tribunal to proceed to decide cases justly, quickly and cheaply.

1. The test of whether evidence was reasonably available at the time is an objective test, that is, whether the evidence was unavailable because no person could have reasonably obtained it (Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 at [23]; Bele-Verdy v The North Coast Community Housing Company Ltd [2025] NSWCATAP 13 at [52]- [54]).
2. The appellant has indicated the reason for the inclusion of the documents and video after the Tribunal hearing was to:

(1) Demonstrate that a persistent fault continues to be present in the vehicle; and

(2) reply to submissions that the respondents had made in their appeal response submissions.

1. The appellant argued that the expert report by Car Solutions constitutes significant new evidence that was not reasonably available at the time, as it is a report to demonstrate that in August 2025 the fault still exists. The appellant had submitted a report in the Tribunal hearing that indicated that the oil had degraded 2% on a 25km drive with no towing or idling and in normal conditions. The appellant argued that the report demonstrates that the oil degradation is showing a symptom of an inherent fault in the vehicle. The expert report by Car Solutions is up to date information that supports this finding.
2. The 1st respondent opposed the admission of the expert report as the appellant could have engaged the expert for the Tribunal hearing but chose not to and should not be allowed to now do so after the deficiencies were found in the appellant's evidence.
3. We accept that the issue of oil degradation was addressed in the appellant's first report and that this follow-up report does demonstrate the condition of the vehicle in August 2025. We find that this report would constitute significant new evidence. Although the appellant could have engaged Car

Solutions to complete a report before the first hearing, the appellant did provide a report from a different 3rd party to the Tribunal. The condition of the vehicle as of August 2025 was not reasonably available at the time of the hearing. Therefore, we admit the expert report by Car Solutions into evidence as significant new evidence not reasonably available at the time of the primary hearing. 4. The appellant's statement, however, appears to further recap the issues that led to the original claim and provide an update on the appellant's claim for costs. There are also a series of annexures attached to the statement. The annexures consist of the service receipts for various services by the 2nd respondent and communications between the parties and others. There are 3 receipts from the 2nd respondent for a service that was undertaken on 21 July 2025, that the appellant says go to demonstrating the 1st respondent's argument about the difference between Mode 9 reports and other reports such as the Datalogger. 5. The 1st respondent objected to the admission of the statement and annexures, as the 1st respondent stated the receipts were issued by the 2nd respondent and the 1st respondent had not had an opportunity to respond to them. Additionally, these receipts that were issued prior to the hearing were all reasonably available to the appellant before the hearing. The appellant was given an opportunity at the Tribunal hearing to address the difference between the Mode 9 and Datalogger reports, and the Tribunal accepted the 1st respondent's opinion over the appellant's, therefore the appellant was attempting to rerun the issue in the appeal. 6. We do not accept that the statement and annexures provide significant new evidence that was not reasonably available prior to the Tribunal hearing, other than the receipt for a service after the Tribunal hearing. However, this could not be classed as significant new evidence, since it does not address the issue in question but, rather, confirms that there are differences between the data logging systems. Therefore, the statement of the appellant and attached annexures is not admitted into evidence. 7. The appellant also relied on a table of submissions demonstrating the differences between the Mode 9 and Datalogger as recorded on 21 July 2025 and a series of pages about the Mode 9. For the same reasons as discussed above for the service receipts of 21 July 2025, we do not admit these pages into evidence.

1st Respondent's materials before the Appeal Panel

1. The 1st respondent filed a Reply to the Appeal, including a copy of written submissions on 19 August 2025.
2. The 1st respondent filed further written submissions on 23 September 2025.

2nd Respondent's materials before the Appeal Panel

1. The basis upon which appeals from decisions of the Tribunal may be brought are identified in s 80 of the NCAT Act, which 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 NCAT Act).

1. 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]. A pure question of law does not depend on the facts found and the question of law must be, self-evidently, a question of law and not depend on the answer. A question of law is distinct from a mixed question of fact and law, for which leave to appeal is required. 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 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. We have engaged in the process of considering whether there is a question of law that has in fact been raised (see also Cominos v Di Rico [2016] NSWCATAP 5 at [13]). We consider that the only question of law raised by the appellant is whether the Tribunal failed to give adequate reasons for the decision and that therefore there was a constructive failure to exercise jurisdiction.

1. Clause 12 of Sch 4 to the NCAT Act provides that the Appeal Panel may grant leave to appeal a decision from the Consumer and Commercial division (CCD) pursuant to section 80(2)(b) of the NCAT 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 to the NCAT 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:

(a) Issues of principle; or

(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. It is important to note that an appeal is not an opportunity for the losing party to rerun the party's case (Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10]).

First Ground (Purported Error on a Question of Law)

1. The first ground of appeal, identified by the Appeal Panel on examination of the appellant's documents, is whether the Tribunal gave adequate reasons for the decision in regard to the analysis for the mandatory considerations of section 54(3) of the ACL, resulting in a constructive failure to exercise jurisdiction.

1. The second ground of appeal raised by the appellant was that the decision was not fair and equitable, as the Tribunal had place limited weight on the mechanic's report showing a symptom, indicating that a direct cause for the issue must be shown by the appellant to be successful. Additionally, the member did not consider the EPA study indicating the average idle time of vehicles in NSW which was substantially higher than what the 1st respondent indicated was severe conditions for idling time.

1. The appellant submitted the decision was against the weight of evidence because the Tribunal had not adequately considered that the appellant had provided a number of documents including a mechanic's report, correspondence and an EPA report showing a definition for usual average idle time for a vehicle in NSW.

1. The appellant submitted that significant new evidence had arisen that was not reasonably available at the time of the Tribunal hearing. The evidence referred to is the Car Solutions expert report.

1. The issues relating to the first ground of appeal are that the reasons of the Tribunal for the decision were inadequate, as the member's reasons failed to demonstrate the member had considered all of the mandatory considerations of section 54(3) of the ACL.
2. As the Appeal Panel stated in Frediani v Hall t/as Happy Camper Conversions [2024] NSWCATAP 134 (Frediani) at [43] and Cusumano at [38], an appeal ground raising "inadequate reasons" does not, of itself, raise an error on a question of law. If reasons are inadequate, that may indicate that there has been an error on a question of law such as a constructive failure to exercise jurisdiction. The purported inadequacy of the reasons may, when analysed, be a complaint about the factual findings of a type that requires leave to appeal.
3. We will deal with this ground on the basis that the purported inadequacy of the reasons, if found, would give rise to a constructive failure to exercise jurisdiction.
4. When considering what is meant by inadequate reasons, the NSW Court of Appeal stated in NSW Land and Housing Corporation v Orr [2019] NSWCA 231 at [66]:

In the context of appellate review of the adequacy of reasons, the function of an appellate court is to determine not the optimal level of detail required in reasons for a decision but rather the minimum acceptable standard: Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 at [48] (Resource Pacific). The standard is not one of perfection: Bisley Investment Corporation v Australian Broadcasting Tribunal [1982] FCA 58; (1982) 40 ALR 233 at 255 (Bisley).

(3) A written statement of reasons for the purposes of this section must set out the following--

(a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based,

(b) the Tribunal's understanding of the applicable law,

(c) the reasoning processes that lead the Tribunal to the conclusions it made.

1. The Appeal Panel considered what represents adequate reasons in Khan v Kang [2014] NSWCATAP 48 at [42]- [44], where it stated:

[42] Section 62 of the Act is not, however, the sole source of the obligation to give reasons for decisions. There is a Common Law duty to give reasons "apart from any express requirement of any statute" - Pettitt v Dunkley [1971]1 NSW LR 376 at [387]. The duty applies to the Tribunal as well as to courts - Campbelltown City Council v Vegan [2006] NSWCA 284; (2006) 67 NSWLR 372...

[43] There are two bases identified in the authorities for the imposition of this duty. First, it facilitates a litigant who may be aggrieved, exercising rights he or she may have to appeal and thus ensures that any appeal right is not rendered nugatory or illusive - Pettitt v Dunkley [1971] 1 NSW LR 376 at [387].

[44] Secondly, reasons are required since a failure to provide sufficient reasons promotes "a sense of grievance" and denies "both the fact and the appearance of justice having been done", thus working a miscarriage of justice...

1. Khan v Kang was cited by the Appeal Panel in Van Dyke v Gathercole (ATF The Gathercole Family Trust) [2018] NSWCATAP 114 at [24]- [27], where the Appeal Panel stated:

the Appeal Panel considers that a Tribunal called upon to determine claims such as the [claims] would generally be required to do the following in order to exercise the jurisdiction of the Tribunal, assuming it has been properly invoked:

(1) identify each relevant claim for relief and that statutory provision or Common Law principle supporting the claim;

(2) identify each of the relevant elements of the causes of action which must be satisfied in order to justify granting the relief sought;

(3) make material findings of fact and law in respect of each of those elements;

(4) explain what relief, if any, should be granted and why.

It may be the case that the fact that these steps have been taken can be seen to be implicit in the reasons and orders made and this will be sufficient... [54] It is always preferable, however, unless circumstances do not permit, for the steps outlined above to be explicitly addressed in the reasons for decision or the orders made. As we have made clear above, in doing so the reasons do not always have to be lengthy or detailed, especially if that would be neither necessary nor proportionate. Nonetheless, the orders and reasons must make it clear that the jurisdiction of the Tribunal, where it has been properly invoked, has been exercised.

The Appeal Panel found that there had been a failure to exercise jurisdiction and thus an error of law.

In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69. it has been held that a failure to provide adequate reasons constitutes an error of law which means the appellant may appeal as of right (s 80(2)(a) CAT Act).

1. The claim was a consumer claim alleging a breach pursuant to s 54 of the ACL. Section 54 of the ACL relevantly states:

54 Guarantee as to acceptable quality

(1) If:

(a) a person supplies, in trade or commerce, goods to a consumer; and

(b) the supply does not occur by way of sale by auction;

there is a guarantee that the goods are of acceptable quality.

(2) Goods are of acceptable quality if they are as:

(a) fit for all the purposes for which goods of that kind are commonly supplied; and

(b) acceptable in appearance and finish; and

(c) free from defects; and

(d) safe; and

(e) durable;

as a reasonable consumer fully acquainted with the state and condition of the goods (including any hidden defects of the goods), would regard as acceptable having regard to the matters in subsection (3).

(3) The matters for the purposes of subsection (2) are:

(a) the nature of the goods; and

(b) the price of the goods (if relevant); and

(c) any statements made about the goods on any packaging or label on the goods; and

(d) any representation made about the goods by the supplier or manufacturer of the goods; and

(e) any other relevant circumstances relating to the supply of the goods.

1. The Appeal Panel has addressed the application of s 54 of the ACL in Frediani at [18], where the Appeal Panel states:

[18] The matters in s 54(3) are "mandatory considerations" to establish whether or not goods are not of acceptable quality under s 54(2)(a)-(e) such that a reasonable consumer, fully acquainted with the state and condition of the goods, would regard the goods as being of acceptable quality, determined at the date of the supply of the goods (Ford Motor Company of Australia Pty Ltd v Capic [2023] FCAFC 179 (Capic-Appeal) at [43] and [56]).

1. The Tribunal at [40] addresses that there is a symptom of a problem that has been identified, being the oil degradation.
2. The Tribunal then addresses whether there is a defect with the vehicle, effectively finding at [31]-[32], on the 1st respondent's oral evidence, that the Intelligent Oil Life Monitoring (IOLM) system is designed to increase services if oil is degrading at [31] and that the appellant is driving the vehicle in severe conditions by driving in Sydney traffic, so there was no defect.
3. The Tribunal does not engage with the respondent's evidence from the EPA report in regards to what is usual idling time for any vehicle in NSW, which was raised by the appellant: see the transcript at approximately 1:00:10. The Tribunal indicates at [41] that the reason that the persistent oil degradation is insufficient to reach a symptom of an inherent defect, distinguishing it from Alliance Motor Auctions Pty Ltd v Saman [2018] NSCATAP 137, is that a credible alternative for the oil degradation has been offered by the 1st respondent. However, even though submissions were made and evidence offered to challenge the credibility of that alternative by the appellant, the written reasons are silent on why the 1st respondent's oral opinion was preferred.
4. The Tribunal is also silent on the submission of the appellant that the very act of the increased frequency of the required services has meant that the vehicle is unfit for the purpose in which it was purchased, being trips to Fraser Island, Moreton Bay and Cape York, as it would require at least two services on the trip: see transcript from approximately 00:40:00. This submission that the vehicle is unfit for purpose has not been addressed in the written reasons.
5. The Tribunal does not engage individually with the elements of section 54(2) or (3) of the ACL, nor with the principles outlined by the Tribunal in paragraph [12], referring to Burton v Chad One Pty Ltd [2013] NSWDC 301 and Australian Knitting Mills Ltd v Grant [1933] HCA 35; (1933) 50 CLR 387, other than in the following limited manner:

(1) In [31] - [33] accepting the 1st respondents' evidence on an alternate theory for the oil degradation, without referring to the appellant's submissions or evidence in dispute; and

(2) In [43] referring to no evidence from an expert that the idle time of the applicant was not severe, although the applicant counter evidence of the EPA report is not referred to in this paragraph. And that the applicant's expert only identifies a symptom and not the actual fault.

1. The specific elements of s 54(3), which are "mandatory considerations" to establish whether goods are not of acceptable quality under s 54(2)(a)-(e), are not discussed in any coherent form in assessing the elements of s 54 (2)(a)-(e). Several submissions by the appellant throughout the transcript, in relation to the stated purpose for the purchase, cost, type of vehicle, advertising and representations of the respondents generating expectations that have not been met, are not referred to in the reasons other than noting them.
2. The Tribunal has not recorded material findings of fact in respect of each of the mandatory considerations of section 54(3) of the ACL, or the basis for those individual findings. In Frediani at [18], as referred to above, the Appeal Panel noted that each of the elements of "s 54(3) are "mandatory considerations" to establish whether or not goods are not of acceptable quality under s 54(2)(a)-(e) such that a reasonable consumer, fully acquainted with the state and condition of the goods, would regard the goods as being of acceptable quality, determined at the date of the supply of the goods (Ford Motor Company of Australia Pty Ltd v Capic [2023] FCAFC 179 (Capic-Appeal) at [43] and [56])." The findings related to section 54(3) are material findings.
3. The Appeal Panel has discussed the issues and principles of constructive failure to exercise jurisdiction and inadequate reasons in Orell v Clas Concrete & Constructions Pty Ltd [2024] NSCATAP 220 at [40] - [53].
4. The Appeal Panel in McNeill v Clarence Valley Council [2025] NSCATAP 184, in considering what constitutes a failure to provide adequate reasons, noted at [136]:

The question might be whether the statutory duty under s 62 of the NCAT Act has been satisfied; or whether the reasons were "sufficient at law" (see Alexandria Landfill Pty Ltd v Transport for NSW (2020) 103 NSWLR 479; [2020] NSWCA 165 per Basten JA at [23]; Wollondilly at [32]). Noting that s 38(2) of the NCAT Act preserves the rules of natural justice, a failure to provide adequate reasons may represent a failure to consider key evidence and/or submissions and therefore constitute a denial of procedural fairness or it may reveal a constructive failure to exercise the jurisdiction: see GTK v NSW Treasury [2025] NSWCATAP 174 at [37] and cases therein referred to.

1. It follows that, in not addressing the mandatory considerations of section 54(3) of the ACL or making the required material findings, the Tribunal has not resolved the section 54 of the ACL breach question, leading to a constructive failure to exercise jurisdiction.
2. We are satisfied that the Tribunal has failed to produce adequate reasons to a "minimal acceptable standard", as the Tribunal failed to identify material findings of fact in the reasons. The inadequacy of the reasons satisfies us that the mandatory considerations in s 54(3) of the ACL have not been considered, resulting in a constructive failure to exercise jurisdiction. Accordingly, an error on a question of law is established.

1. It is unnecessary to consider the remaining grounds of appeal, as we are satisfied there is an error on a question of law established.
2. Since the matter will need to be remitted for determination, with likely enhanced evidence, it is preferable for us not to express opinions on contested factual matters, other than to indicate a need to address what the evidence on idling and frequency of service in fact demonstrates.
3. We consider that whatever evidence is relied upon should be assessed afresh by a different member.

1. The Appeal Panel has determined, for the reasons above, that the appeal should be upheld.

(2) The orders of the Tribunal made on 16 June 2025 are set aside.

(3) The proceedings are remitted to the Tribunal to be reconsidered according to law.

(4) What further or other evidence can be relied upon by the parties in the remitted proceedings is to be considered by the Tribunal at an interlocutory directions hearing.

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.