Fresh evidence in Ford PowerShift trial

The claimants in a class action against Ford over its PowerShift dual-clutch automatic transmission have been granted the right to introduce new evidence mid-trial.

An affidavit by a motor mechanic who tested lead applicant Biljana Capic’s 2012 Ford Focus was ruled acceptable because her solicitors made a mistake in not filing it earlier.

Justice Nye Perram, who is presiding over the case in the Federal Court in Sydney, made the judgment in early July but it was only published this week.

The trial concluded on July 24 and the judge is now awaiting final written submissions.

The class action represents people who acquired a Ford Focus, Fiesta or EcoSport with a PowerShift transmission between January 2011 and May 2016.

The action alleges approximately 70,000 of these vehicles were sold and in many cases the PowerShift auto displayed issues including “shuddering, juddering, delayed and jerky acceleration, and non-starting”.

The mistake in not filing mechanic David Marston’s emailed evidence is being blamed on a change of solicitors. While Bannister Law originally started this process, Corrs Chambers Westgarth is now prosecuting the class action.

“The former solicitors failed to appreciate the email’s significance and did nothing about it,” Justice Perram stated. “Secondly, the email was supplied to the new solicitors in the changeover. The new solicitors either did not review the whole of their predecessor’s files and did not see the email at all or, if they did inspect it, overlooked its significance.”

The Lawyerly website reports Marston was tasked with testing Capic’s Ford along with a Ford representative. He subsequently emailed Banister Law noting “some vehicle abnormalities” and requesting “a quick conversation”.

The existence of Marston’s evidence only came to light during the trial when Ford’s legal team argued his evidence wasn’t being presented because it would have been damaging to Capic’s case.

But when an attempt was then made to introduce the evidence, Ford’s legal team opposed it because it would be prejudicial and was not presented in its proper form.

However, Justice Perram rejected that argument.

“I do not agree that any real prejudice is visited upon Ford because Mr Marston’s evidence takes the form of his notes,” he said.

The class action seeks to recover damages from Ford for current and former PowerShift vehicle owners, alleging the Blue Oval did not comply with Australian Consumer Law and behaved in a misleading and deceptive way.

The damages are intended to recover losses incurred by the class action group members including the difference between the price group members paid for their PowerShift vehicles and the true value of the cars and any other losses caused by Ford’s alleged misconduct.

These include the cost of inspecting the cars for defects, the costs of repairs, car hire, taxi fares, additional expenses due to re-financing, and any other expenses incurred to replace a defective PowerShift vehicle.