FEDERAL COURT OF AUSTRALIA

Capic v Ford Motor Company of Australia Limited (No 5) [2018] FCA 8

ORDERS

IN THE INTERLOCUTORY APPLICATION:

THE COURT DIRECTS THAT:

1.    The Applicant’s solicitors are to inform the firm conducting the mail-out of the notification of these reasons and their obligations under Hearne v Street [2008] HCA 36; (2008) 235 CLR 125.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

PERRAM J:

1    This is another interlocutory application in this class action involving allegedly defective automatic transmissions in certain vehicles imported into Australia by the Second Respondent to the application, Ford Australia. It is listed for trial on 3 December 2018 for three weeks.

2    The Applicant, Ms Capic, has applied for a common fund order but that application has not yet been heard. As a matter of procedure, it is necessary that the class members be notified of the application and be given an opportunity to oppose it if they wish. The common fund application is listed for hearing on 16 March 2018.

3    On Friday, 22 December 2017, I made machinery orders designed to facilitate that hearing. One of those settled the form of notice to be sent to the class members by a mailing house. Another dealt with the difficulty that Ms Capic’s lawyers do not know the mailing addresses for most of the class members.

4    The problem which confronts them in that regard is not insignificant. The pleadings define the class as follows:

‘…consumers…who:

(i)    at any time during the period January 2011 until 11 May 2016 inclusive (the relevant period) acquired, including by purchase or lease, in Australia, a Ford motor vehicle fitted with a DPS 6-speed dry dual-clutch PowerShift transmission (the PowerShift Transmission), in particular, the following models (Affected Vehicles).

(emphasis in original)

5    It will be apparent from this definition that the class is potentially large. I was told by the Applicant that there were likely around 70,000 vehicles involved. It will also be obvious that obtaining the addresses of the class members so that they can be notified of the common fund application is not a straightforward task.

6    Ms Capic’s present application concerns that problem. The First Respondent to the application is Austroads Ltd which is a corporation limited by guarantee. It is the peak association of Australian road transport and traffic agencies. One of its functions is managing the National Exchange of Vehicle and Driver Information System (‘NEVDIS’). NEVDIS is a database of Australian driver and road vehicle information. It includes a subdatabase of national vehicle identification numbers (‘VINs’). NEVDIS allows for the seamless transition of vehicle registration and driver licence information between State and Territory boundaries. It includes information linking each registered road vehicle to its owner (at least when the owner is an individual).

7    It is this information which Ms Capic’s lawyers wish to tap notwithstanding that it relates only to purchasers of new rather than second hand Affected Vehicles. Ford Australia itself has access to this information but only for the purposes of product recalls which this case does not involve. Austroads resists being required to provide the address information.

8    By the time the application was heard, Ford Australia had indicated that it could provide to Austroads the VINs for each vehicle in the class. With the VINs, Austroads can provide at least the address of the registered owners. It nevertheless resisted being required to produce that information. It did so on the basis that the Court lacked the power to order it to produce the information, or alternatively, that if the power existed it should decline to exercise it. At the hearing I indicated that I did not accept the primary submission and would give my reasons for this later. These are those reasons.

9    The first step in the argument was that the information in NEVDIS was ‘personal information’ within the meaning of s 6 of the Privacy Act 1988 (Cth) (‘the Act’). I accept this contention which was not disputed. Secondly, it was said that Austroads was an ‘organisation’ within the meaning of s 6C because it was a ‘body corporate’ within the meaning of that provision. This too was not in dispute. It followed, thirdly, that Austroads was an ‘APP entity’ within the meaning of s 6 (which definition includes ‘organisations’). Again, this was not in dispute.

10    Fourthly, s 15 of the Act required Austroads not to do something which would breach an ‘Australian Privacy Principle’ (‘APP’):

‘15 APP entities must comply with Australian Privacy Principles

An APP entity must not do an act, or engage in a practice, that breaches an Australian Privacy Principle.’

11    By s 14(1) these principles are set out in Schedule 1. Austroads then submitted, fifthly, that the matter was governed by APP 7 which deals with direct marketing. The relevant prohibition is in cl 7.1: ‘If an organisation holds personal information about an individual, the organisation must not use or disclose the information for the purpose of direct marketing.’

12    The sixth step in the argument was to observe that whilst APP 7 is subject to exceptions, none of those included the circumstance of being ordered by a Court to produce the information. The exceptions are set out in cls 7.2-7.5. There is no need to set them out because the point is what they do not contain. I accept that there is no exception to APP 7 for being required to produce the material by Court order.

13    I will assume in Austroads’ favour that this has the consequence that this Court’s power to order production of such information in the context of direct marketing has been removed. In making that assumption, I offer no comment on whether the assumption is sound.

14    This is because even assuming that APP 7 cannot be lifted by Court order, I am satisfied that APP 7 does not apply in this case. In short, the process of contacting the class members to inform them of the common fund application on 16 March 2018, is not ‘direct marketing’. The notice which is to be sent does not seek to sell the class members anything. It merely tells them that the Federal Court will receive any objection which they wish to make to the common fund application on 16 March 2018. That is not any form of direct marketing. APP 7 has, therefore, no application.

15    This is not to say that the Act is irrelevant. To the contrary, the information held by Austroads is regulated under that legislation, but the relevant principle is APP 6 not APP 7.

16    Without setting out the provision in great detail, cl 6.1 of APP 6 prohibits the release by an APP entity of personal information held by it without the person’s consent. Austroads submitted that providing the NEVDIS data to Ford Australia would be a contravention of this clause. However, cl 6.1 is subject to the exceptions set out in cl 6.2 and these include:

‘(b)    the use or disclosure of the information is required or authorised by or under an Australian law or a court/tribunal order;’

17    If the Court otherwise has the power to order production of the personal information in question, APP 6 does not therefore prevent production under that order. This then raises three questions: does the Court have the power to order the information to be produced; if it does, should it exercise that power; and, if so, on what conditions.

18    As to the first issue of power, subject to the failed APP 7 argument, it was not submitted that the Court lacked the power, in the context of class actions to order production to facilitate a mail-out so that the common fund application may be notified to class members. The Court is given an express power to order notices to be sent to group members (s 33X(5) of the Federal Court of Australia Act 1976 (Cth) (‘FCAA’)) and I consider that grant of power carries with it an implied grant to do whatever is necessary to make the exercise of that power effective. That would include obtaining address information about class members from third parties. A similar source of power is s 33ZF(1) of the FCAA which authorises the Court to make any order ‘the Court thinks appropriate or necessary to ensure that justice is done in the proceeding’. A similar conclusion on the issue of power was reached by Foster J in Carter v Audi Australia Pty Ltd (No 2) [2017] FCA 1042 at [98]-[100].

19    The fact that the Court has the power does not mean that it should exercise it. Two relevant discretionary issues were said to intrude. First, Austroads submitted that it would involve it in a breach of contract if it complied with an order to produce the information. The agreement in question was entitled the NEVDIS Participation Agreement which exists between Austroads and the eight participating jurisdictions and is dated 7 July 2015. Cl 10.2 of the agreement on its face binds Austroads not to disclose the confidential information of a participant. I will assume that the information in question is, generally, of that nature. However, the expression ‘Confidential Information’ is defined in cl 1.1 of the agreement in a way which includes a carve-out for ‘information required by law to be disclosed’. Accordingly, once an order is made, cl 10.2 no longer binds Austroads not to disclose the information the subject of the order. Cl 12.2 also binds Austroads to comply with the Act. However, as I have explained, compliance with the Act does not prevent disclosure when there is a Court order. Reference was also made by Austroads to cls 13.1, 13.2, Schedule 2 and Schedule 5 of the agreement, but these do not in any way qualify what I have just said. No breach of contract will occur, therefore, in Austroads complying with this Court’s order. Reliance was also placed on a Safety Recall Agreement between Ford Australia and Austroads. This agreement has nothing to do with the issues at hand. In particular, it does not speak to the topic of what Austroads may do with its information. Nor does it say anything about Ford’s obligations with respect to VINs. It may be put aside.

20    Turning then to confidentiality, it remains an important issue at a discretionary level. For example, one should be astute to ensure that the confidentiality of the information is preserved so far as is possible. In this case, all of the parties are subject to an implied undertaking only to use information obtained by this Court’s compulsory processes for the purposes of the litigation: Hearne v Street [2008] HCA 36; (2008) 235 CLR 125 (‘Hearne v Street’) at 131 [3], 145 [56], 158-160 [107]. That case was concerned with discovery inter partes but the Court’s reasoning explained that it also extended to documents or information obtained by compulsory process from third parties: see 154-155 [96].

21    The particular way in which the information is to be used should be noted. Ford Australia is to provide the VINs to Austroads. Austroads will then provide the address information to a third party mailing house which will send out the notices. As the High Court explained in Hearne v Street, the undertaking not to use information generated by compulsory process for extraneous purposes extends to third parties (see 131 [3] and 160 [109]). This will include the mailing house. To make this absolutely clear, I will make an additional direction that the Applicant’s lawyers inform the mailing house which is to send the notices out of its confidentiality obligations.

22    Subject to that additional direction, these are the reasons for the orders made on 22 December 2017.

Associate:

Dated:    12 January 2018