Federal Court of Australia

Capic v Ford Motor Company of Australia Pty Ltd (Remitter) [2025] FCA 670

ORDERS

THE COURT ORDERS THAT:

1.    The parties should provide to my chambers short minutes of order giving effect to these reasons.

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

REASONS FOR JUDGMENT

PERRAM J:

1    Ms Capic’s case has been remitted from the High Court for reassessment of her damages. These reasons determine the quantum of Ms Capic’s reduction in value damages and her claims for consequential losses. They also resolve some case management issues which have recently arisen in relation to the group members.

Reduction in value damages

The trial

2    Ms Capic alleged that her Ford Focus was not of acceptable quality within the meaning of s 54 of the Australian Consumer Law (‘ACL’), being Schedule 2 to the Competition and Consumer Act 2010 (Cth). She alleged this because her vehicle as purchased suffered from six deficiencies each of which was alleged to give rise to risks of mechanical difficulties, including principally but not only, clutch shudder. The nature of clutch shudder and the other mechanical difficulties are described in detail in the primary reasons. I will refer to these mechanical difficulties collectively as symptoms. These reasons assume a detailed knowledge of the primary judgment: Capic v Ford Motor Company of Australia Pty Ltd [2021] FCA 715; 154 ACSR 235.

3    Ms Capic alleged that the risks of these symptoms developing arose from four inadequate components in the transmission assembly of the vehicle:

(a)    input shaft seals,

(b)    the clutch lining,

(c)    the transmission control module (‘TCM’) and

(d)    the rear main oil seal.

4    I found (a)-(c) proven but not (d). These conclusions were not disturbed on appeal by either the Full Court or the High Court.

5    Ms Capic also alleged that the transmission suffered from two architectural deficiencies:

(e)    inadequate management of torsional vibrations and

(f)    inadequate management of heat.

6    These were alleged to create a superadded propensity, i.e. an increased risk, that the symptoms associated with the component deficiencies in (a)-(d) would occur. When the car was driven at low speeds the inadequate damping of torsional vibrations in (e) was also alleged to result in rattling gears and a slight shudder (which I accepted). The inadequate management of heat in (f) was not alleged to result in any symptoms independently of the component deficiencies in (a) to (d).

7    I found (e) proven but not (f). I did not address Ms Capic’s submission that the two architectural deficiencies gave rise to a superadded propensity that the symptoms associated with the component deficiencies would occur.

8    The Full Court reversed my conclusion that (f) was not proven and found that the vehicle did suffer from the architectural deficiency of inadequate heat management: Ford Motor Company of Australia Pty Ltd v Capic [2023] FCAFC 179; 300 FCR 1 (‘Ford’) at [222]-[227] per Yates, Beach and Downes JJ. It also found that both architectural deficiencies gave rise to a superadded propensity that the symptoms associated with the component deficiencies in (a) to (c) would occur. It concluded that I should have made such a finding. On appeal, Ms Capic did not however submit that the inadequate management of heat gave rise to any symptoms independently of the component deficiencies.

The figure of 30%

9    In the primary judgment I concluded that the risks to which Ms Capic’s vehicle was subject when purchased meant that it was worth 30% less than she had paid for it. Although there was valuation evidence about the value of the vehicle before me, I did not think that this evidence was useful because it was premised on facts different to those that I had found. That conclusion was not disturbed on appeal.

10    I also determined that I would approach the assessment of the reduction in value damages on an impressionistic basis. Given the detailed findings I had made about the vehicle, its problems and the passage of time, the appropriateness of approaching damages in this way was expressly approved by the High Court.

A more defective vehicle than originally assessed?

11    On remitter, Ms Capic submits that I should increase the 30% figure because the Full Court’s findings implied that the vehicle was more defective than I had found it to be.

12    She submitted that the Full Court had added to the list of problems the additional architectural deficiency of inadequate heat management. Whilst this is true, I do not accept that this deficiency was put forward by Ms Capic in the Full Court as giving rise to any additional symptoms in its own right. Rather, it was identified as one of the root causes of the component deficiencies. I do not think that this finding by the Full Court therefore warrants any alteration to the 30% figure.

13    Ms Capic also submitted that the Full Court held that I should have found that the two architectural deficiencies gave rise to a superadded propensity that the symptoms associated with the component deficiencies would occur. My original assessment did not include any consideration of this superadded propensity. I accept her submission that this means that the 30% should be revised upwards.

The relevance of repairs to reduction in value damages

14    In the Full Court the question of reduction in value damages was covered by Grounds 5 and 8(a) of Ford’s Amended Notice of Appeal (Ground 8(b) was also relevant but for present purposes may be disregarded). Amongst other orders, the Full Court allowed Ford’s appeal on these two grounds. It held that the repairs which had been performed on Ms Capic’s vehicle and her frustrating experiences with the vehicle after 24 December 2012 should have been taken into account in assessing her reduction in value damages. The matter was remitted to me to determine her reduction in value damages on the basis of the evidence that was before me. The Full Court recognised that its reasons might provide incomplete guidance on remitter: Ford at [316].

The appeal to the High Court

15    Ms Capic then appealed to the High Court following a grant of special leave. On appeal, the High Court allowed the appeal but only on the question of damages: Capic v Ford Motor Company of Australia Pty Ltd [2024] HCA 39; 98 ALJR 1333 (‘Capic’) at [1] per Gageler CJ, Gordon, Steward, Gleeson and Beech-Jones JJ. Its reasons in Capic must be read with the reasons it simultaneously delivered in Williams v Toyota Motor Corporation Australia Ltd [2024] HCA 38; 98 ALJR 1282 (‘Williams’). The Court held that Ms Capic’s reduction in value damages were to be assessed at the time she purchased the vehicle (Williams at [3], [54]-[55] per Gageler CJ, Gordon, Steward, Gleeson and Beech-Jones JJ) and that the subsequent repairs to her vehicle and her individual experiences with the vehicle were not relevant: Williams at [59], [64]-[65] (Edelman J agreeing at [91]); Capic at [18] (Edelman J agreeing at [29]).

16    Nevertheless, the High Court accepted that subsequent repairs and the hypothetical reasonable consumer’s experience with an affected vehicle might be relevant in the sense that a court assessing reduction in value damages should consider ‘the capacity to repair the defect or ameliorate its consequences, including when, how and at what cost those repairs or ameliorative steps could be undertaken’: Williams at [34]; Capic at [19]-[20] (Edelman J agreeing at [29]). The cost and inconvenience associated with such repairs were also to be taken into account in assessing reduction in value damages but ‘[a]ny particular cost and inconvenience occasioned to an individual consumer above and beyond that assumed by a reasonable consumer at the time of supply’ is not to be taken into account: Williams at [61].

17    The rationale for this approach was explained by the Court in Williams at [59]:

The resolution of this dispute flows from the conclusion that later acquired knowledge of the capacity to repair a defect (including a hidden defect) or ameliorate its consequences as well as when, how and at what cost those repairs or ameliorative steps would be undertaken cannot be divorced from any analysis of what constitutes the relevant “defect”. Upon being informed that particular goods had a defect that carried a particular propensity to cause the goods to perform sub-optimally, a hypothetical reasonable consumer acquiring such goods could be expected to inquire whether the defect could be remedied and, if so, the effectiveness, cost, inconvenience and timing of a repair. If that information was known at the time of trial and not brought to account at the time of supply, then there would truly be a risk of the consumer receiving more or less than could be justified on the basis of the facts then known. A consumer would receive less if the court awarded damages on a flawed understanding that, at the time of supply, repair of such defects at a moderate cost was possible when subsequent events revealed the defects were in fact unfixable and would receive more if subsequent events demonstrated that the defects could be fixed quickly at no cost.

18    The High Court then set aside the Full Court’s orders allowing Ms Capic’s appeal on Grounds 5 and 8(a), replaced them with a further order upholding Grounds 5 and 8(a) and on this basis allowed the appeal. Like the Full Court, the High Court concluded that the matter should be remitted to me to assess Ms Capic’s damages. The High Court indicated that this assessment was to be carried out in accordance with its reasons for judgment.

19    It is then necessary to turn to the repair trajectory of Ms Capic’s vehicle. Conceptually there are two such trajectories. These are (a) the actual repair trajectory of her vehicle and (b) the hypothetical repair trajectory of the vehicle viewed from the perspective of the hypothetical reasonable consumer on the date Ms Capic purchased her vehicle (24 December 2012). I will assess both of these before choosing between them.

The actual repair trajectory of Ms Capic’s vehicle and her negative experiences

20    On 16 November 2015 Ms Capic’s vehicle received the 15B22 software update. This did not directly resolve the issues with the TCM. It did however ameliorate the risk of symptoms associated with the TCM since it had the effect of requiring the vehicle immediately to be serviced if the solder cracking began to manifest.

21    A few months later, on 10 February 2016, the vehicle received a new TCM with the revised ATIC 91 chip. From this date, the risk of it developing the symptoms associated with the former TCM were resolved.

22    On 30 May 2017, the vehicle’s input shaft seals were replaced. From this date, the risk of it developing the symptoms associated with the former input shaft seals was eliminated.

23    On 30 May 2017, the vehicle’s clutch lining was replaced with the half-hybrid B8040/B8080 clutch lining. At trial, I was unable to make a finding that the half-hybrid clutch lining was an effective fix. I was also unable to make a finding that it was not. At [764] in the primary judgment I determined that Ford bore the burden of proving this matter. That conclusion was not disturbed on appeal. It follows that it is not shown that the problem with the clutch lining was resolved on 30 May 2017 or at any later date. This conclusion says nothing about the position of vehicles that were manufactured with the half-hybrid B8040/B8080 clutch lining.

24    This means that Ms Capic’s vehicle continues to have the following problems:

(a)    the component deficiency of the clutch lining material;

(b)    the architectural deficiency of inadequate management of torsional vibration which at slow speeds carries a risk of gear rattling and light shuddering;

(c)    the architectural deficiency of inadequate heat management. However, apart from (d) (below) this did not give rise to any independent risk of symptoms in addition to those already posed by the component deficiencies.

(d)    The superadded propensity that (a) would result in a wider range of symptoms because of (b) and (c).

25    I have added the words ‘apart from (d)’ in (c). I accept that the Full Court did not make such a finding. However, if those words are not added then (c) and (d) are inconsistent. The deficiency of heat management cannot be merely a root cause of the component deficiencies without the risk of additional symptoms (as accepted by Ms Capic on appeal and as apparently accepted by the Full Court) and at the same time also result in an exacerbation of those symptoms. If read that way, the Full Court’s conclusions would be internally inconsistent. I do not proceed on the basis that the Full Court made such an error.

26    It is clear in the case of Ms Capic’s vehicle that the many risks to which it was prone became manifest. Consequently, she presented the vehicle for servicing on 15 occasions between 14 April 2013 and 11 June 2019. Many of these were pointless since Ford had not solved the underlying problems. This was no doubt frustrating and tedious for Ms Capic. As many judges have remarked in the course of this litigation, her Ford Focus is a lemon.

The hypothetical repair trajectory

27    Ms Capic’s vehicle suffered from the input shaft seal problem. A partial solution to this problem became available from September 2013 when the FKM elastomer material was introduced. Whilst this improved the problem it did not eliminate it. The problem was only fully resolved from late 2014 when the outer backing material of the seal was changed from rubber to steel. Once told of the problem with the leaking input shaft seals the hypothetical reasonable consumer would have inquired about repairs and would have been provided with this information: Williams at [59].

28    Ms Capic’s vehicle also suffered from the TCM problem. Ford submitted that, in addition to the possible symptoms of this problem, the hypothetical reasonable consumer would be told a range of facts, namely, that (1) the TCM problem would not develop immediately if at all; (2) if it developed, it would happen over time subject to how much the vehicle were used; (3) the TCM problem might result in various symptoms including shudder and the illumination of the engine light; and (4) such symptoms, if unchecked, could ultimately lead to loss of power. Ford further submitted that the hypothetical reasonable consumer would be told that Ford (5) would develop a complete fix to the TCM problem in the form of a replacement chip (the ATIC 91 chip) that would become available from November 2014 and (6) would release software by October 2015 (the 15B22 software update) that would detect solder cracking and inform the driver of it before the relevant symptoms became perceptible. I accept these submissions.

29    Ms Capic’s vehicle also suffered from having been manufactured with the inappropriate B8080 clutch lining. Whilst Ford succeeded in proving that from September 2016 the new B8040/B8080 half-hybrid material was available, it did not succeed in proving that this material was an effective fix. It is true that Ms Capic also failed to prove that the B8040/B8080 half-hybrid material was not an effective fix. However, on this issue it was Ford who bore the burden of proof. Ms Capic proved that her vehicle was not of acceptable quality because of the B8080 clutch lining material. It was for Ford to prove that an effective repair would become available. Since Ford did not prove that the half-hybrid material was an effective fix, I do not think that the hypothetical reasonable consumer would have been told about it.

30    In relation to the architectural deficiencies of inadequate management of heat and inadequate management of torsional vibrations, the hypothetical reasonable consumer would have been told three matters. First, that the inadequate heat management did not generate any independent symptoms but did give rise to a superadded propensity to exhibit the issues found to be associated with the component difficulties. Secondly, that the inadequate management of torsional vibrations had a similar effect but independently also gave rise to a tendency for the vehicle to make gear rattling noises and exhibit a slight shudder when driven at slow speeds. Thirdly, the hypothetical reasonable consumer would be told that these two architectural problems were irremediable.

Which is the correct repair trajectory

31    The hypothetical reasonable consumer is taken to inquire whether each defect could be repaired and, if so, the effectiveness, cost, inconvenience and timing of the repair. I read [59] in Williams to mean that if the answer to these questions is known at trial, the hypothetical reasonable consumer is taken to have received that information at the time of purchase.

32    But which information? Is it the actual repair trajectory of Ms Capic’s vehicle or the likely future repair trajectory of her vehicle viewed through a probabilistic lens from 24 December 2012?

33    This is a question of fleshing out the counterfactual. It is clear from Williams that the actual history of repairs is not relevant. It follows that what is relevant is the likely future repair trajectory as it appears to the hypothetical reasonable consumer on 24 December 2012. This is also clear because the risk-based nature of the case entails the irrelevance of whether the risks actually transpired. Since the actual repair history of Ms Capic’s vehicle is intimately linked to its actual history of exhibiting symptoms, it is difficult to see how the excision of the latter from the counterfactual does not also require the excision of the former.

34    In reaching that conclusion, I have not found it is necessary to assess Ms Capic’s submission that her repair experience in the real world was capable, in principle, of throwing light on the counterfactual. For example, whilst the evidence might show that a particular repair became available from a particular date, Ms Capic’s experience might show that it was not in fact ‘practically available’ in her area at that time: Williams at [61]. Assuming in favour of Ms Capic that this sort of reasoning is available, I would not apply it in this case for two reasons.

35    First, I do not think that the facts concerning the repair trajectory of Ms Capic’s car are forensically sufficient for this kind of undertaking. I know that Ms Capic did not get the repairs immediately but I do not see how I can infer from that a more general state of affairs in the counterfactual.

36    Secondly, even assuming that problem did not exist, the differences in timing implied by Ms Capic’s submission exist at a level of granularity that is beneath the resolution implied by the impressionistic task of assessing Ms Capic’s reduction in value damages. Put another way, in the case of Ms Capic’s vehicle, the parties’ submissions are like angels dancing on the head of a pin.

37    In those circumstances, I will proceed on the basis that what matters is not when Ms Capic’s car was remediated bur rather when Ford made the remedies available.

Giving value to the hypothetical repair trajectory

38    Ford submitted that, since I had concluded at trial that the repair history was irrelevant, the fact that some successful repairs to the vehicle would in the future become available entailed that 30% figure should be reduced.

39    Ms Capic, on the other hand, submitted that whilst the repair history showed that the hypothetical reasonable consumer would have known that some of the risks to which the vehicle was subject would eventually be eliminated, they would also know that some of them would not. On that basis, Ms Capic urged an increase in the 30% figure.

40    The original assessment of 30% did not take into account the now known facts that the TCM and the input shaft seal risks would eventually be fully remediated. However, whilst the hypothetical reasonable consumer must be given that knowledge, he or she must also be taken to know this will not occur for around three to four years. I do not think precision of dates beyond that level can be methodologically justified due to the large number of known unknowns. The known unknowns include when the hypothetical risks might manifest in the vehicle, the frequency of servicing undertaken by the hypothetical reasonable consumer and the extent to which these, alone or in combination, may correspond with the availability of remediable steps which were in fact effective.

41    On the other hand, as Ms Capic correctly points out, the hypothetical reasonable consumer also knows that some of the deficiencies will never be remediated. The risks arising from the two architectural deficiencies are permanent features of her vehicle. In the case of the clutch lining, the hypothetical reasonable consumer would not be told that a repair would become available because Ford has not proven that the half-hybrid clutch lining was in fact a repair. Whether the absence of such proof entails that the clutch lining will never be repaired, and whether the hypothetical reasonable customer should be told as much, is perhaps an interesting question. However, I do not need to enter upon it. The relevant factual finding in the counterfactual is that I make no finding that the hypothetical reasonable consumer would have been told that a repair for the clutch lining would become available.

42    The next question is whether I should take into account the fact that in getting to the position of partial remediation three to four years after its purchase on 24 December 2012, there should also be taken into account the various false starts along the way. By this I mean Ford’s repeated but unsuccessful attempts to fix the problems. That must be answered by reference to the hypothetical reasonable consumer. That consumer is taken to ask whether the difficulties with the vehicle will be repaired and, if so in what time frame, at what expense and with what inconvenience.

43    I reject Ms Capic’s submission that the hypothetical reasonable consumer would also be told that Ford would deny throughout the relevant period that there was anything wrong with the vehicle. I do not see how being told that would impact the value of the vehicle. In addition, if such a denial had the effect of increasing Ms Capic’s reduction in value damages, it would appear to follow that if Ford had admitted that there was something wrong with the vehicle this would decrease those damages. This counter-intuitive outcome suggests that the topic of what Ford would have told the hypothetical reasonable consumer about the source of the problems is irrelevant. A parallel path to this conclusion is that this topic falls outside the ambit of what the hypothetical reasonable consumer would be told: Williams at [33]-[34]; Capic at [20].

44    In answer to the question about inconvenience, the hypothetical reasonable consumer would be told that some (but not all) of the problems would be fixed within around three to four years and that, during that period, a series of solutions would be offered to consumers which would not work and which would require many trips to the repair shop to have the vehicle unsuccessfully remediated. The hypothetical reasonable consumer would not have to pay for these visits which would be done under warranty.

45    There are conceptual difficulties in equipping the hypothetical reasonable consumer with this knowledge. For example, once the hypothetical reasonable consumer knows that there will be three to four years of pointless trips to the repair shop, it is difficult to see why the hypothetical reasonable consumer would make those trips since they already know they are pointless.

46    However, problems like this are just consequences of equipping the hypothetical reasonable consumer with knowledge which is not in fact available until the time of the trial. The hypothesis involves information travelling back in time from the time of the trial to the time of the purchase contrary to well-known principles of physics. Like all adventures in time travel, there are going to be coherence problems with this sort of exercise from time to time. I do not think that they constitute objections. Striving for perfect rationality in the realm of the counterfactual can be counterproductive.

47    Thus, whilst such logical objections exist, they do not persuade me that the hypothetical reasonable consumer should be deprived of the knowledge that several years of annoying and pointless trips to the repair shop lie in her future.

48    I agree with Ford that the fact that some remediation of the underlying risks will become available must exert a downward pressure on the 30% figure I previously determined. But given that not all of the risks will be remediated this effect must be modest. On the other hand, the hypothetical reasonable consumer’s knowledge that they may be subjected to three to four years of pointless visits to the repair shop before partial remediation is finally achieved rather tends to suggest the presence of an upward force on the 30% figure.

49    For the purposes of reduction in value damages, I disregard Ms Capic’s personal experience of great inconvenience in getting the vehicle to this state of partial remediation. Whilst it is a known fact that the risks in Ms Capic’s car all eventuated and resulted in symptoms so that her vehicle is a lemon, the hypothetical reasonable consumer does not know the outcome of this lottery. What the hypothetical reasonable consumer knows is that there are risks that the vehicle might be a lemon.

50    This is not to say that Ms Capic’s unsatisfactory repair experiences are irrelevant. She might have been awarded damages for these experiences as part of her claim for consequential losses. However, she did not press that point at trial and I made no award for it.

The relevance of Mr Vasalakis’s evidence

51    In the trial reasons, I concluded that Mr Vasalakis’s evidence was irrelevant. This conclusion was not disturbed on appeal. Assuming it is open to me to consider Mr Vasalakis’s evidence now, I am not persuaded that I should do so. Whilst the Full Court has found that the vehicle suffered from inadequate heat management, as I have explained, that conclusion is not linked to any additional symptoms apart from the superadded propensity referred to above. I set out other differences between my conclusions and Mr Vasilakis’s assumptions at [865] to [868] of the primary judgment. I am not persuaded that the Full Court’s conclusions overcome these differences.

Reassessment of the reduction in value damages

52    Ms Capic submitted that her reduction in value damages should be increased from 30% to 50%. Ford submitted that they should be reduced from 30% to 15% or less.

53    The assessment of Ms Capic’s reduction in value damages is impressionistic. The High Court has so held: Capic at [24]. I have indicated above that some matters justify an increase in the reduction in value damages whilst others warrant a reduction. Measuring these effects against each other numerically is impossible. The evidence before the Court is insufficiently precise to justify such an approach.

54    Taking into account all of the matters I have outlined above and those aspects of the primary judgment not disturbed on appeal, I have come to the conclusion that an appropriate award for reduction in value damages should remain at 30%, i.e., $6,820.91.

Consequential damages and prejudgment interest

55    The consequential damages are the payments of GST, stamp duty and financing costs where Ms Capic paid $6,820.91 more for her vehicle than she should have. The parties are agreed that these matters may be determined mechanically from the figure $6,820.91. Ms Capic is also entitled to an award of interest up to judgment, including the amounts for excess GST, financing and stamp duty.

Case management issues

56    A case management hearing was held on 26 May 2025. A number of issues require consideration.

Ford’s limitation defence

57    Ford has pleaded at §§ 31(c)(ii) and 38(c)(iv) of its Defence the three year limitation defence in s 273 of the ACL. It provides:

273    Time limit for actions against manufacturers of goods

An affected person may commence an action for damages under this Division at any time within 3 years after the day on which the affected person first became aware, or ought reasonably to have become aware, that the guarantee to which the action relates has not been complied with.

58    Ford did not rely upon s 273 against Ms Capic’s claim at trial but it is pleaded in relation to the group members. In the absence of having tested Ford’s defence at trial, the question is how this issue may now be progressed. The guarantee in question is the guarantee that the vehicles were of acceptable quality. Thus, the three year period will begin to run once a group member first became aware (or ought reasonably to have become aware) that their vehicle was not of acceptable quality because of the risks to which it was subject.

59    Whilst it is easy to imagine that many of the group members were aware that their cars were suboptimal, this is not to the point because the case was not run on the basis that the vehicles were not of acceptable quality because they exhibited mechanical difficulties including shuddering, sudden deceleration, grinding noises and difficulties with gear selection. Rather, the case was that Ford’s failure to comply with the guarantee consisted of the fact that the vehicles were manufactured with quite complex engineering problems which gave rise to risks that such symptoms would occur.

60    It seems reasonable to assume that awareness of these complex engineering problems by any group member ought to have been reasonably formed by the time I published the primary judgment. Perhaps that is also true prior to the litigation or at earlier points in the litigation, including when the risks were first articulated by Dr Greiner. Having not heard oral argument on this issue, and as limitation issues are notoriously complex, I express no concluded view.

61    There thus remains a need to assay the issue in some convenient form. The appropriate course would be to select a reasonable number of sample members who purchased their cars between 2011 and 2013. The limitation defence can then be worked out in relation to these sample members. Since the parties are already working on sample members for other purposes, this activity may be added to that list.

Vehicles purchased after 17 May 2013

62    The proceeding was commenced on 17 May 2016. Apart from its limitation defence, Ford does not raise any other defences to the original group claims (I leave to one side the new group members added at the end of last year). In relation to persons who acquired their vehicle after 17 May 2013 and who still own it, the only remaining issue is quantification. I agree with Ms Capic that the process of quantifying these claims should be got underway. Just precisely how this will be done is a matter for the parties to determine and I will entertain any application either or both wish to make.

Allowing group members to sell their vehicles

63    Although it is not certain, it is quite possible that once a group member ceases to own their vehicles, they will lose the entitlement to reduction in value damages. This problem afflicts all members of the group. In relation to those group members against whom Ford no longer has any liability defence, Ms Capic seeks to crystallise the group members’ entitlement to an award of damages so that group members may then dispose of their vehicles. The group members for whom this is relevant are those for whom there can be no limitation defence, i.e., those who acquired their vehicles within the three year period before the commencement of the proceeding.

64    I do not think that the declaration sought or an order for damages to be assessed solves the problem. Just because the Court has declared that Ford has breached s 54 of the ACL and has awarded damages to the group members with those damages to be assessed (by a method to be determined) can have no impact on the legal question of when damages for a contravention of s 54 are to be assessed.

65    Identification of the legal question of when damages are to be assessed raises for consideration whether what Ms Capic really wants is an order under s 33Z(1)(g) that for group members for whom there are no longer any liability defences damages are to be assessed as from the date that Ford ceased to have any liability defence (or, potentially, at some other point in time). This may solve the problem directly. Whether s 33Z(1)(g) authorises an order of that kind is a different issue upon which I would need to hear argument. But on the face of it, the interests of justice would appear to favour the group members to the extent that the making of such an order may relieve Ford of an unhealthy incentive to drag its feet.

66    I will make no order at this stage and express no concluded view on the scope of s 33Z(1)(g). However, I will entertain any application Ms Capic’s wishes to make.

Other debates

67    I agree with Ms Capic that a hearing date for the sample members and any other issues should be fixed now. In my view, given the history of this matter, I think it wise to put aside 5 days. I have no doubt that, by the time of the hearing, these parties will expand the scope of their debate beyond the sample members. Further, as I have indicated, there should now be added some further sample members or, at least, further issues for the sample members. I can provide the parties with five days in any of the weeks commencing 14 September 2026, 21 September 2026 or 28 September 2026, or in any five date period in December 2026. The parties should approach the timetabling issues on the basis that all issues should be ready for trial, including dates that address the production of any documents.

68    I agree with the applicant’s proposal for a case management hearing before the continuation of the trial. A date should be arranged with my chambers.

69    The parties should provide to my chambers short minutes of order giving effect to these reasons.

Associate:

Dated:    20 June 2025