Capic v Ford Motor Company of Australia Pty Ltd [2021] FCA 715

Federal Court of Australia

Capic v Ford Motor Company of Australia Pty Ltd [2021] FCA 715 File number: NSD 724 of 2016

Judgment of: PERRAM J

Date of judgment: 29 June 2021

Catchwords: CONSUMER LAW – representative proceedings – guarantee of acceptable quality in s 54 Australian Consumer Law ('ACL') – where 73,451 vehicles supplied in Australia with DPS6 dry dual clutch transmission – allegation transmission non-compliant with s 54 guarantee due to real risks of failure arising from four component and two architectural deficiencies – where failure manifests in range of undesirable symptoms including vehicle shudder – where Respondent introduced revised versions of three of four original components – where Respondent submitted some symptoms are 'normal operating characteristics' of the vehicles – where component deficiencies interrelated with transmission's architecture – where Applicant alleged transmission control module failure a safety issue CONSUMER LAW – representative proceedings – where Applicant claimed damages for herself and on behalf of group under ACL s 271(1) – whether s 271(1) confers a single cause of action where goods have multiple features that independently constitute non-compliance with s 54 CONSUMER LAW – where Respondent replaced failed components under warranty – where effectiveness of replacements in issue – where Respondent relies on ACL s 271(6) to negative Applicant's claim – whether s 271(6) part of cause of action or defence – whether s 271(6) enlivened where consumer has not required manufacturer to repair goods – whether Applicant bears onus in relation to s 271(6) – where parties did not litigate question of 'reasonable time' with respect to group members – whether late repairs affect entitlement to damages – whether Respondent bears onus in relation to s 271(2) CONSUMER LAW – representative proceedings –allegation of misleading or deceptive conduct based on implied representations arising from marketing of vehicles – where no link to knowledge of Respondent – where express representation alleged to be on Respondent's website – where no evidence as to context of representation EVIDENCE – where Applicant sought to rely on evidence from 52 group members in class of 73,451 vehicles – where method of selection unknown – whether evidence of group members sufficiently representative to be probative REPRESENTATIVE PROCEEDINGS – where Applicant sought aggregate damages on behalf of group – where Federal Court of Australia Act 1976 (Cth) s 33Z requires reasonably accurate assessment of total amount to which group members will be entitled – where group member's entitlement to reduction in value damages for defective components unknown DAMAGES – Applicant's individual claim for reduction in value – whether value to be assessed at time of supply or by considering repairs performed during life of vehicle DAMAGES – Applicant's individual claim for other reasonably foreseeable loss under s 272(1)(b) – whether Applicant can recover excess tax and financing costs – effect of award of reduction in value damages PRACTICE AND PROCEDURE – where Respondent objected to Applicant's reliance on certain documents discovered in US proceedings – where documents tendered at end of trial and not part of particularised case – whether reliance procedurally fair in light of notice given