If this doesn’t convince you of our urgent need for an independent car industry ombudsman to protect ordinary consumers - nothing will.
Paul and Jo Dale, from Darwin in the Northern Territory, Powershit Ford owners, they reached out to me on the 30th of August.
Mr & Mrs Dale were jubilant that they had won their case in the Northern Territory Civil and Administrative Tribunal.
Here's how Jo Dale put it in her first e-mail to me:
If you would like a good news story I took my Ford dealership to court over my lemon powershit and won (yesterday). As in court ordered refund. Feel free to get in touch. I want my story told with the f bombs it deserves." - Jo Dale
The shining beacon of free speech that is the NT News corroborated Jo Dale’s story.
"A COUPLE who bought a faulty car from a Territory dealership has had more than $25,000 returned to them after winning a case in the Small Claims Tribunal." - NT NEWS
The Dales were also awarded costs, which is uncommon - with a total settlement of $25,826 ordered by Sally Gearin who presided over the NTCAT hearing. NTCAT’s cases are capped at a maximum of $25,000. Ms Gearin’s findings include a determination that the total damages suffered by the Dales was $30,921.64 - not an inconsiderable sum, for average people.
Sally Gearin found:
"I am satisfied the Applicants have proved their case. They should have been advised of the transmission problems experienced with the TCM when they purchased the vehicle. After the concerns raised were not fixed, it was unreasonable for the Respondents to expect the Applicants to drive a vehicle which was clearly unreliable in its performance. To do so would be to expect the Applicants to risk their lives or damage to themselves and or other road users with the vehicle’s erratic and unpredictable performance."
- Sally Gearin, NTCAT
Ms Gearin also found that the (quote) “failure to provide a vehicle that is consistently safe constitutes a major failure” under the Consumer Law. She awarded the maximum possible compensation.
The dealer - Red Earth Automotive, which apparently trades as Hidden Valley Ford in Darwin - was thus compelled to pay the $25k (and change) - leaving Mr and Mrs Dale about $5000 out of pocket, albeit burdened by one less shitbox Ford. This is after about 18 months of Powershit ownership hell.
Learn more about the notorious Ford Powershift transmission saga >>
Mr and Mrs Dale relied on testimony from an expert: Glenn Allemand - who (in so far as I can see) basically corroborated the known fact that the Powershit transmission more than lives up to its vernacular, and can’t be fixed.
Ms Gearin, who ran the hearing, concluded that Mr Allemand was a more reliable expert witness than the dealer’s witness, Chris Hillyard. She found:
“Mr Hillyard does not have the specific transmission qualifications of Mr Allemand and his attempt to minimise the dangers inherent in the problems experienced by the applicants was not helpful or believable.”
- Sally Gearin, NTCAT
So, Mr & Mrs Dale’s expert was better qualified, more believable and independent of Ford. You’re thinking this is a victory for the good guys, right? Keep watching.
THE BIGGER PICTURE
Against the backdrop of this majestic Top End courtroom drama, is of course the ACCC’s proposed Federal Court reaming-out of Ford Australia over its alleged unconscionable conduct over the Powershit transmission generally.
Click to enlarge the ACCC's infographic (right).
That ACC matter is before the Federal Court - but without speculating on the likely outcome you’d have to presume the ACCC is proceeding with that action on the basis of the facts its investigation has uncovered, and the balance of probability of achieving a successful prosecution - otherwise it’s just a terrible waste of public funds.
Anyway, I’d been back and forth with Jo Dale by e-mail for several days. I got a bit worried when she started discussing singing in the shower, and sending me the song. Slightly too much information there. But, hey, Northern Territory. After four days I attempted to temper Jo’s exuberance thus:
“Let’s see what ultimately happens. I hope the story doesn’t get better (for me). Perhaps they will appeal to a higher court, just to be arseholes.” - Me, to Jo Dale
And I have to say that sometimes it’s not fun to predict the future. It’s just not. On the 12th of September - less than two weeks after being awarded the maximum settlement available to NTCAT, Mr & Mrs Dale learned that they were probably going back to court.
Red Earth Automotive - a euphemism for Hidden Valley Ford in Darwin - is taking them back to NTCAT, and asking the tribunal to reverse its decision. The Dales are now defendants - although NTCAT calls them ‘respondents’.
The dealer is seeking the earlier NTCAT ruling in favour of the Dales be stayed, for now, and ultimately reversed, and is making an application that the Dales pay the dealer’s $500 fee to file this appeal.
None of this is of course giving me pause to reconsider my view on the ethical landscape inhabited by car dealers, but because the matter is before a court, I am limited in what I can say. I make no comment on the proper outcome, which is for NTCAT to determine.
WHAT THE DEALER IS ATTEMPTING
The dealer alleges, in its application:
There was certainly no major failure to comply with any of the statutory guarantees so as to give rise to an entitlement to a refund or replacement vehicle. - Red Earth Automotive appeal allegation
The dealer also alleges (I’m paraphrasing) that their expert was better than the Dale’s expert. But it was this statement, right at the end of the dealer’s application that I found most telling about a car dealer’s ethical orientation.
The dealer wants NTCAT to press pause on paying the $25 grand and change because, apparently:
“...there is a real risk that if this application succeeds the Applicant will have difficulty recovering the sum of $25,826 from the Respondents, rendering this application futile.” - Red Earth Automotive appeal allegation
KICKING AN 'OWN GOAL' AT ALL COSTS?
Personal opinion: This action by the dealer seems incredibly petty, and also counter-productive. If they were to pay the compensation as originally determined, they get the car back, they tart it up, they sell it to some other poor, uninformed bastard. They’re only out of pocket the difference between the $25k and what they get for that shitheap when they sell it.
If I were the dealer I would: a) kill myself, and b) carefully consider the real cost of the reputational damage such apparently churlish, vindictive action has on the enthusiasm of people in the market to engage with my dealership.
If you wanted to turn people away, putting a customer’s head in a vice, publicly, is, I’d suggest, a very effective deterrent.
If I were Ford, I would have a quiet word with the dealer vis a vis reputational damage to the brand. And if I were you, I would carefully consider this matter in the interests of managing risk effectively in respect of any future car purchase in the Top End. I really would.
WHY WE NEED THAT OMBUDSMAN
This is, of course, why we need an independent car industry ombudsman.
This instance of appealing is not the first such ‘win at all costs’ court appeal action I have seen a car dealer take against a customer. Not by a long shot.
It’s often ego out of control in concert with the cunning arsehole plan to crush the desire to fight for a fair go by waging a war of financial attrition.
The fundamental asymmetry of you versus a dealer, or you versus a carmaker, is as absurd as it is apparent. It makes the Consumer Law a joke - because you can only get the justice you can afford. It’s simply not a fair fight.
The Federal Government - and in particular Michael McCormack, the minister in charge of consumer affairs - needs to stop playing pocket billiards and sucking up to the car industry’s arsehole lobby group. It’s not helping. Personal opinion.
Here’s a novel suggestion: How about, instead, Mr McCormack gets off his arse and levels the playing field so that ordinary people - you know, the ones who elected him to represent them - so they actually get a fair go over the second most expensive purchase they will ever make, and upon which their mobility depends.
Mr McCormack: Put an ombudsman in place - and preferably not the former chief counsel for Fiat Chrysler, or somesuch. Someone actually independent. I’ll be waiting for hell to freeze over on that. You can contact the minister via his website - michaelmccormack.com.au - let him know what you think. And of course, tell him I said ‘G’day.’