Federal Court of Australia

Fisher v Isuzu Motors Ltd (No 2) [2025] FCA 1168

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to ss 22, 33ZF(1) and/or 37P(2) of the Federal Court of Australia Act 1976 (Cth) (Act), the applicants have leave to issue and serve upon Isuzu Ute Australia Pty Limited a subpoena for production of the following information:

(a)    a list of the Vehicle Identification Number (VIN) of each:

(i)    Isuzu D-MAX vehicle with a model year (MY) of 2017 or later;

(ii)    Isuzu 2016.5 MU-X vehicle; or

(iii)    Isuzu MU-X vehicle with a MY of 2017 or later,

offered for sale, exchange and/or hire-purchase in Australia between 1 January 2016 to 14 August 2024 (Affected Vehicles);

(b)    as regards any acquisition by a person (including by way of purchase, exchange, or hire-purchase) of an Affected Vehicle, a list of:

(i)    the name and contact details (including, where available, the email address and mobile phone number) of the person who acquired the vehicle;

(ii)    the date of the acquisition of the vehicle;

(iii)    the model of the vehicle that was acquired;

(iv)    the Vehicle Identification Numbers of the vehicle that was acquired; and

(v)    the price for which the vehicle was acquired

(c)    as regards any person who has obtained a service of an Affected Vehicle by Isuzu Ute Australia Pty Ltd between 1 January 2016 to 14 August 2024:

(i)    the name and contact details (including, where available, the email address and mobile phone number) of the person who owned the serviced Affected Vehicle; and

(ii)    if different from (a), the name and contact details (including, where available, the email address and mobile phone number) of the person who contracted for the service of the Affected Vehicle;

(iii)    the model of the vehicle that was serviced;

(iv)     the Vehicle Identification Numbers of the vehicle that was serviced.

(d)    The applicants must serve the subpoena in Order 1 by 9 October 2025.

2.    Isuzu Ute Australia Pty Limited’s costs of complying with any subpoena issued pursuant to Order 1 above are to be paid by the applicants in the first instance, but are to be dealt with as costs in the cause.

3.    Pursuant to ss 33J of the Act, 4:00pm on the date 9 weeks after the Distribution Date referred to in Order 5(a) below (Opt Out Date) is fixed as the date on or before which a Group Member (as defined in the amended statement of claim) may opt out of this proceeding in accordance with these Orders.

4.    Pursuant to s 33X of the Act, the form and content of the email correspondence and notice set out in Annexure A to these Orders (Electronic Notice) is approved.

5.    Pursuant to ss 33X(5) and 33Y of the Act, the Electronic Notice be distributed to Group Members according to the following procedure:

(a)    on or before a date 6 weeks after the applicants notify Isuzu Ute Australia Pty Limited that they are satisfied that it has fully complied with the subpoena referred to in Order 1 above (Distribution Date), the applicants will cause:

(i)    a copy of the Electronic Notice to be sent by email; or

(ii)    if an email address is not available but a mobile telephone number is available, a copy of the Electronic Notice to be sent as a link included in an SMS message,

to each person who has registered with the applicants’ solicitors through the website maintained by the applicants’ solicitors in relation to this proceeding;

(b)    on or before the Distribution Date, the applicant will cause:

(i)    a copy of the Electronic Notice to be sent by email; or

(ii)    if an email address is not available but a mobile telephone number is available, a copy of the Electronic Notice to be sent as a link included in an SMS message,

to the persons identified by the subpoena pursuant to Order 1 above;

(c)    continuously through the period from the Distribution Date to the Opt Out Date, the applicants will cause a copy of the Electronic Notice, together with copies of the Amended Originating Application, Amended Statement of Claim, Amended Defence, and any orders of the Court relating to the matters addressed in the Electronic Notice, to be displayed on the website of the applicant’s solicitors;

(d)    continuously throughout the period from the Distribution Date to the Opt Out Date to the Opt Out Date, the District Registrar of the New South Wales Registry of the Federal Court of Australia shall cause a copy of the Electronic Notice to be posted on the class action page of the website of the Federal Court; and

(e)    continuously throughout the period from the Distribution Date to the Opt Out Date, the respondent will cause a copy of the Electronic Notice to be displayed on the respondent's website, together with a link to the Federal Court website referenced in Order 5(d) above;

6.    Pursuant to s 33J(1) of the Act, any group member who wishes to opt out of this proceeding must, before the Opt Out Date, deliver a duly completed opt out form to the New South Wales District Registry of the Federal Court of Australia.

7.    The solicitors for any party have leave to inspect the Court file and to copy any opt out forms filed.

8.    If, on or before the Opt Out Date, the solicitors for any party receive a notice purporting to be an opt out form referable to this proceeding, the solicitors must file the notice in the New South Wales District Registry of the Federal Court of Australia within seven days of receipt, and the notice shall be treated as an opt out notice received by the Court at the time it was received by the solicitors.

9.    Pursuant to s 33Y of the Act, the applicants' solicitors shall cause the Short Form Notice at Annexure B to be published once in each of the following newspapers on one weekday edition by no later than a date 13 weeks before the Opt Out Date:

(a)    The Australian;

(b)    The Australian Financial Review;

(c)    The Daily Telegraph;

(d)    The Herald Sun;

(e)    The Adelaide Advertiser;

(f)    The West Australian;

(g)    The Northern Territory News;

(h)    The Courier Mail;

(i)    The Canberra Times; and

(j)    The Hobart Mercury.

10.    Any disbursements the applicants incur in distributing the communications referred to in Orders 5(a), 5(b) and 9 above are to be paid by the applicants in the first instance but are to be costs in the cause.

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

ANNEXURE A

ELECTRONIC NOTICE

RE:    Class Action against Isuzu Motors Limited RELATING TO CERTAIN D-MAX AND MU-X VEHICLES

Dear [NAME],

You are receiving this correspondence because you may have bought or otherwise acquired an interest in a MY2017 or later Isuzu D-Max, or a MY2016.5 or later Isuzu MU-X vehicle between 1 January 2016 and 14 August 2024.

The records provided to us indicate that you may have purchased or otherwise acquired an interest in the following vehicle(s):

Registered Owner Name    VIN

[NAME]    XXXXXXXXXXXX

If so, if you still owned (or had an interest in) that vehicle on 14 August 2024, then you may be a group member in a class action proceeding seeking damages from Isuzu Motors Limited, which is currently before the Federal Court of Australia.

It is important that you read the notice below carefully. If you have any questions, you may contact Piper Alderman (solicitors for the Applicants) by emailing Isuzuclassaction@piperalderman.com.au.

Kind regards

Martin del Gallego

Piper Alderman

DRAFT OPT OUT NOTICE TO GROUP MEMBERS

Important Legal Notice

OPT OUT NOTICE

Federal Court of Australia Case No. NSD1109/2024 (“ISUZU CLASS ACTION”)

This is an important notice issued to you by the Federal Court of Australia regarding a class action about certain Isuzu D-Max and MU-X vehicles

Why is this Notice important?

The Federal Court of Australia has ordered that this notice be published for the information of people who are part of the group on whose behalf this case has been brought and who are affected by the action. It is also to inform you that selling your Affected Vehicle may mean that you will receive less, or no, monetary damages, even if the Isuzu Class Action is successful (see Page 5).

You have been identified as a potential group member. You should read this notice carefully. Any questions you have concerning the matters contained in this notice should not be directed to the Court. If there is anything that you do not understand you should seek legal advice.

What is a class action?

A class action is an action that is brought by one person/s (the Applicant) on their own behalf and on behalf of a class of people (the Group Members) against another person/s (the Respondent) where the Applicant and the Group Members have similar claims against the Respondent. In this class action, there is more than one Applicant, and one Respondent.

Group Members in a class action are not individually responsible for the legal costs associated with bringing the class action. In a class action, only the Applicants are responsible for the costs.

Group Members are “bound” by the outcome in the class action, unless they have opted out of the proceeding. A binding result can happen in two ways, being either a judgment following a trial, or a settlement at any time. If there is a judgment or a settlement of a class action, Group Members will not be able pursue the same claims and may not be able to pursue similar or related claims against the Respondent in other legal proceedings.

If you consider that you have claims against the respondent which are based in your individual circumstances or otherwise additional to the claims described in the class action, then it is important that you seek independent legal advice about the potential binding effects of the class action before the deadline for opting out (see below).

What is the Isuzu class action?

The Isuzu class action is brought by the Applicants, Geoffrey Fisher and CDR Geotechnical & Environmental Services Pty Ltd against Isuzu, who has been held out as the manufacturer of Isuzu D-Max and MU-X vehicles supplied in Australia. The Applicants sue Isuzu on their own behalf and on behalf of all persons who are Group Members as defined in the proceeding.

The Applicants allege that the Affected Vehicles were manufactured with illegal “defeat devices”, which caused them to emit vehicle emissions higher than Australian regulations allowed them to emit. Isuzu denies those allegations.

The Applicants seek damages (that is money) from Isuzu, on the basis that:

(a)    Isuzu misrepresented that the Affected Vehicles complied with national vehicle standards;

(b)    the Affected Vehicles were not of an acceptable quality and so did not comply with statutory guarantees contained in the Australian Consumer Law; and/or

(c)    Isuzu has engaged in unconscionable conduct.

Isuzu denies the allegations and says that the Affected Vehicles complied with all applicable Australian emissions regulations. It is defending the Isuzu Class Action.

What does it mean to 'Opt out'?

The Applicant (or Applicants) in a class action does not need to seek the consent of the Group Members to commence a class action on their behalf or to choose how to describe the class in a way that includes specific Group Members. However, after the commencement of a class action, Group Members can cease to be Group Members by opting out of the class action. An explanation of how Group Members can opt out is found below.

I am a Group Member, what are my options?

You are a Group Member if you acquired a MY2017 or later Isuzu D-Max, or a MY2016.5 or later Isuzu MU-X vehicle, between 1 January 2016 and 14 August 2024 (Affected Vehicles), from Isuzu Ute Australia Pty Ltd or its retailers or dealers in Australia and who retained title to that Affected Vehicle as at 14 August 2024, or otherwise persons who acquired title to one of these vehicles from, through, or under a person who made such a first-hand purchase, for example, in the second-hand market, or as beneficiary of a trust.

Option 1 – Do nothing and remain a Group Member. Unless you choose Option 3 below, you will remain a Group Member. This means that you will be bound by any settlement or judgment in the class action, and you will not be able to sue Isuzu for the same (or possibly related) claims in any future case. If the case is successful, you will be entitled to share in the benefit of any compensation that the Court awards although you may have to satisfy certain conditions before your entitlement arises. However, if the case is not successful (or less successful than you would have liked), you will not be able to sue Isuzu later for the same claims, or possibly even related claims. You do not have to do anything to remain a Group Member.

Option 2 – Register your interest in the class action. You do not need to do this to remain a Group Member, but it will help to ensure you receive up-to-date information about the case, and help you to participate in any settlement. You can register via Piper Alderman’s webpage at https://piperalderman.com.au/class-actions/isuzu-class-action/

Option 3 – Opt Out of the class action. If you do not wish to remain a Group Member you can Opt out. This means that you will not participate in the class action. If you Opt out you will not be included in any compensation or award the Court makes or any settlement. If you Opt out you can still bring your own claim against Isuzu. You should seek your own legal advice about that and any time limits that may apply.

If you wish to Opt out you must complete the form which is at Annexure A and return it to the Registrar of the Federal Court of Australia at the address on the form by no later than 4:00pm on [insert].

You should submit the form to opt out if:

(i) you qualify as a class member and you wish to opt out of the class action; or

(ii) you believe that you have been incorrectly identified as a class member, because you do not meet the criteria set out above, and you do not want to receive any further information about this class action.

Each class member seeking to opt out should fill out a separate form. If you are opting out on behalf of a company or business please provide your name, the name of the company or business and your position within the company or business (e.g. director or partner).

If I remain a Group Member or register for more information will I be liable for legal costs?

You will not become liable for any “out of pocket” legal expenses simply by remaining as a Group Member. Group Members are not, and will not be, liable for any “out of pocket” legal costs by remaining in this class action. The costs of running the class action are being funded by Woodsford, a litigation funder, and the Applicants’ lawyers, Piper Alderman.

The costs of running the class action are being funded by Woodsford and the lawyers Piper Alderman, and, if the class action is unsuccessful, Woodsford will pay or procure payment by an insurer of any of the Respondent’s costs that the Applicants are ordered to pay. If the class action is unsuccessful, you will not be liable for any legal costs.

In order to bring the class action, the Applicants signed a litigation finance agreement with Woodsford (Funding Agreement). In doing so, the Applicants agreed that if the class action is successful, and the Applicants obtain money from a settlement or judgment, they will repay to Woodsford from those proceeds any reasonable costs advanced by Woodsford (including any interim adverse costs, security, or upfront insurance premiums), Woodsford’s ‘Success Fee’, unpaid insurance premiums (including deferred and contingent insurance premiums) due under any After-the-Event insurance policy, as well as fees deferred by Piper Alderman for recovery from any settlement or judgment, together with an additional 25% on those deferred fees.

Pursuant to the Funding Agreement, the Applicants have also agreed to apply for an order that will fairly distribute their obligations under the Funding Agreement amongst all people who have benefited from the action. This may be by way of what is known as a Common Fund Order, a Funding Equalisation Order, or may be by another order of the Court.

Applicants’ costs and Woodsford’s Success Fee

As noted above, if the class action is successful, the Applicants intend to seek an order that you contribute to the costs out of/from any settlement or judgment received by you in respect of your claim. Subject to the Court’s approval, these costs will be deducted from any recovery before you receive any award or compensation.

In return for the funding that Woodsford provides under the Funding Agreement for the Lead Applicant’s ‘own-side’ costs (as distinct from the adverse costs risk, which is discussed further below), Woodsford charges a ‘Success Fee’ payable from any Gross Proceeds.

The Applicants have agreed to apply for:

•    a Common Fund Order consistent in amount with Woodsford’s Success Fee. Woodsford’s Success Fee, defined in the Funding Agreement, means the amount equal to twenty-seven point five per cent (27.5%) of Gross Proceeds which may be amended up to a maximum of thirty-five per cent (35%) if the costs paid by Woodsford exceed a certain level; and

•    an order that the Cash Outlay, Adverse Costs, the Woodsford Security Fee and any security paid by the Funder, any remaining Lawyers’ professional fees, any ATE Insurer premiums and Adverse Costs paid by the ATE Insurer, and the time and cost of the Representatives (but not compensation for its claimed losses), be deducted from the Gross Proceeds.

Gross Proceeds are the total amount received (including any settlement sum, or compensation, costs and damages award by the Court and interest) paid or credited to, in favour of, for the benefit of, or to the order of, the Applicants or Group Members, by the Respondent or any third party which relates to the subject matter of the class action.

The Cash Outlay is defined in the Funding Agreement as the total amount of legal and other fees and costs (incl. GST) advanced by Woodsford plus all other fees and costs relating to the class action reasonably incurred by Woodsford within the scope of the Funding Agreement. Those costs include:

•    Piper Alderman’s fees;

•    Third party costs, including barristers’ fees; and

•    Upfront (but not deferred and contingent) premiums for after-the-event (ATE) insurance and the costs of any deeds of indemnity purchased from the ATE insurers to satisfy the Respondent’s requests and/or applications for security for costs.

Adverse Costs and ATE Insurance

If the class action is unsuccessful, the Court may order the Applicants (and/or other third parties such as Woodsford) to pay some part of a successful Respondent’s costs (known and Adverse Costs).

To protect against the risk of Adverse Costs, Woodsford has:

•    Indemnified the Applicants (and Group Members who participate) against liability for any Adverse Costs order made against the Applicants; and

•    Obtained ATE insurance to:

•    Provide the Applicants and Group Members with additional protection against the risk of adverse costs (the ATE insurance, provided by an A-rated ATE insurer, expressly covers Adverse Costs payable by the Applicants); and

•    Enable the Applicants to provide security for the Respondent’s costs (for example by purchasing deeds of indemnity from the ATE insurer).

In return for this protection against the Adverse Costs risk, the Applicants have agreed to apply for a Court order that the costs of any such ATE insurance, including any deferred and contingent ATE insurance premiums, be payable from the Gross Proceeds (in addition to the other costs mentioned above, including Woodford’s Success Fee).

To summarise, and to assist you in understanding the effect of the Applicant’s agreement with Woodsford and Piper Alderman, strictly subject to the Court’s approval, the Applicants will apply for a Court order to have Gross Proceeds obtained from a settlement or judgment is expected to be distributed as follows:

•    First, repayment of reasonable costs (Cash Outlay) advanced by Woodsford, as described above;

•    Secondly, payment of Woodsford’s Success Fee, Piper Alderman’s deferred fees and the additional 25% on those deferred fees, and any unpaid insurance premiums due (including any deferred and contingent premiums); and

•    Thirdly, payment of the balance of the settlement money between all Group Members (including the Applicants) in accordance with a distribution scheme approved by the Court.

The Applicants also intend to apply to have any fees incurred for their own time involved in the class action paid from any proceeds obtained from a settlement or successful judgment.

Selling your Affected Vehicle may affect your claim to damages

If you currently own an Affected Vehicle and you sell it before the conclusion of the Isuzu Class Action, your entitlement to certain monetary damages (called “Reduction-in-Value Damages”, explained below) will most likely be lost, and therefore your overall entitlement to damages (if any) will potentially be significantly reduced.

The Applicants allege that the sale of the Affected Vehicles did not comply with the consumer guarantees in the Australian Consumer Law (Law), and so Isuzu must pay Group Members damages.

The Applicants are asking the Court to order Isuzu to pay Group Members two types of damages:2

•    Reduction in Value Damages (i.e. damages for the reduction in value of goods as a result of the manufacturer’s failure to comply with the Law); and

•    Compensatory Damages (i.e. damages to compensate for any actual losses suffered by a consumer as a result of the manufacturer’s failure to comply with the Law).

In cases such as the Isuzu Class Action, Reduction in Value damages may be significantly higher than any available Compensatory Damages.

Reduction in Value Damages will only be available to consumers in a class action like the Isuzu Class Action if, at the time a Court delivers a judgment (i.e. makes its decision after the conclusion of a hearing), the consumer still retains title to the relevant vehicle.

Accordingly, if you choose to sell or dispose of your Affected Vehicle, you may lose some or all of the money that you might otherwise have received from a judgment or successful settlement in the Isuzu Class Action.

Group Members will need to take their own financial and legal advice to ensure that any decision they make is right for them.

Where can you obtain copies of relevant documents?

Copies of the relevant documents may be obtained by contacting a District Registry of the Federal Court (contact details are available at www.fedcourt.gov.au) and paying the appropriate inspection fee.

The Applicants’ Amended Statement of Claim (ASOC), which sets out the allegations against the Respondent is available here: [insert].

The Respondent’s Defence to the ASOC is available here: [insert].

A copy of the Applicants’ Funding Agreement can be inspected at Piper Alderman’s offices.

What do I do if I have further questions?

You can get more information by:

•    visiting https://piperalderman.com.au/class-actions/isuzu-class-action/;

•    emailing isuzuclassaction@piperalderman.com.au; or

•    seeking your own legal advice.

If you wish to opt out, you should not delay in making your decision.

ANNEXURE B

DRAFT SHORT FORM NOTICE TO GROUP MEMBER

REASONS FOR JUDGMENT

OWENS J:

1    The parties to this representative proceeding have agreed on orders concerning the form and distribution of an opt out notice and related matters, save in one respect: who should pay.

2    In short, the applicants say that each side should pay half of the costs associated with the opt out process (with those costs being costs in the cause), while the respondent submits that it is the applicants who should bear those costs (although, again, they are to be costs in the cause).

3    To the extent that it was not obvious already, s 33Y(3)(d) of the Federal Court of Australia Act 1976 (Cth) confirms that the Court has a general discretion to order that the costs of giving a notice to group members be paid by any, or all, of the parties to the proceeding. Although that discretion is relevantly unfettered, it has been observed that “the general rule is that the costs incurred in giving a notice should be borne by those instituting and prosecuting the litigation”: J Wisbey & Associates Pty Ltd v UBS AG (No 2) [2024] FCA 147 at [183] (Beach J); Johnson Tiles Pty Ltd v Esso Australia Pty Ltd [2001] VSC 284 at [19] (Gillard J).

4    A recent example of adherence to that general rule may be observed in Haverkort v Qantas Airways Limited [2025] FCA 1147 (Order 9) (Moshinsky J). An assumption that the applicants would be responsible for the costs of providing an opt out notice to group members was evident in Alford v AMP Superannuation Limited (No 2) [2024] FCA 423 at [99] (Murphy J). There is little advantage in multiplying the examples, but other recent instances include: Sanda v PTTEP Australasia (Ashmore Cartier) Pty Limited (Opt Out Obligations) [2022] FCA 1409 (Order 31) (Perram J); Luke v Aveo Group Limited (No 2) [2022] FCA 1072 (Order 5) (Anderson J); Baker v Woolworths Group Ltd (Opt-Out Notice) [2021] FCA 223 (Order 10) (Perram J).

5    Of course, there are other cases in which there has been found to be a good reason why it is appropriate to take a different course. One such case, which the applicants emphasised, was Fox v Westpac Banking Corporation [2023] VSC 414 (Nichols J). Her Honour identified the particular circumstances justifying requiring the parties to share the expense as follows (at [164]-[165]):

In this case, notification is to be given not only of the right of group members to opt out of the proceedings, but also of the requirement for group members to register an interest in the proceedings, in order for them to retain their right to participate in any compensation agreed in consequence of the forthcoming mediations. Class closure (an order under ss 33ZF and 33ZG) is a discretionary step that has been sought by the defendants. It is obviously not a step that could properly be taken without advising group members of how it will affect their rights and what they may do in response to the Court’s orders. The notification regime I will order is extensive, but for the reasons given, is appropriate in circumstances in which group members’ interests are to be affected by the orders, in that way.

For the reasons set out earlier at some length, the class closure orders will be made for the purposes of assisting the parties to mediate effectively. Such a step will be to the benefit of both sides. In deciding whether to make class closure orders I have concentrated upon the interests of group members. But an effective mediation process is also in the interests of the defendants. So much is apparent from the submissions made by the defendants in support of their applications for class closure. The notification then, is an expense of the proceeding, but is in respect of a step that will be to the benefit of both parties in each case. In those circumstances, it is fair that both sides share the costs of notification.

6    Her Honour’s decision may be seen to be a product of an assessment of the particular circumstances of that case, including the reasons for which notice was to be given, the context in which it was to be given (including other notifications to be made at the same time), and the benefit to the parties in doing so. Those circumstances do not have any obvious parallel to those of the present case. In this case, the reasons advanced by the applicants in support of an order that the costs be shared between the parties were expressed as follows:

This is a case where (1) the respondent (not the applicants) proposed early issue of opt out notices (2) the issue of opt out notices now involves a potentially significant, abnormally early, expense in the proceeding requiring attempts to contact each group member individually and the use of news media advertisements (3) the expense may be incurred again in the context of any notice issue prior to and giving notice of any mediation, which may otherwise have been an appropriate single vehicle in which to provide formal opt out notification. This unusual and expensive procedure was at the request of the respondent and opposed by the applicant.

7    Some context is necessary in order to understand those submissions.

8    At a case management hearing on 4 July 2025 the applicants sought an order that I approve a notice to group members, to be published in major newspapers circulating throughout Australia, and on the applicants’ solicitors’ website. The purpose of that proposed notice was to alert group members to the possibility that, consistently with the recent decisions of the High Court in Williams v Toyota Motor Corporation Australia Ltd [2024] HCA 38 (especially at [71]-[72] (Gageler CJ, Gordon, Steward, Gleeson and Beech-Jones JJ) and [112], [122] (Edelman J)) and Capic v Ford Motor Company of Australia Pty Ltd [2024] HCA 39, if they sold their vehicle before the conclusion of proceedings, they would be unable to obtain damages for any reduction in value of the vehicle, and would be limited to compensation for any actual losses they could prove they have suffered.

9    I did not approve the proposed notice to group members. Among other reasons, I considered that it was undesirable to communicate with group members by way of a general communication to the public at large, in relation to one rather specific issue arising in connection with the proceedings, providing advice relevant to a significant personal decision, all in circumstances where it was unlikely that group members were yet aware of the existence of the proceedings at all (and thus, a fortiori, unaware of the nature of the proceedings and the issues raised in and by them). The potential for confusion struck me as significant. Furthermore, if the information was as important as the applicants considered it to be, then it seemed to me to be appropriate to communicate the message to group members in a way that both provided proper context, and which was more likely in fact to come to their attention.

10    The case was quite different, I thought, from the ongoing proceedings in Williams and Capic where similar communications to group members had been approved following the High Court’s decisions. Those cases had proceeded to the point where a favourable judgment for the class had been obtained, and damages were being assessed. Opt out had already occurred. The notices would be sent directly to group members to the extent possible. Group members were, by that point, presumably well familiar with the nature of the proceedings, and in a position to make an informed decision in relation to their vehicles in light of the new information sought to be communicated to them.

11    I was, however, satisfied that these proceedings had reached a stage where the issues were sufficiently clearly defined to make the opt out process useful. As Senior Counsel for the applicants said on 4 July 2025, there is often “a very large gap after the commencement of … proceedings until [group members] first get told about it” and there is much to be said for the view that there “should be a much more truncated period because they are affected by it”. In other words, at least in cases where the proceedings are of such a kind that a group member may wish or need to take (or refrain from taking) some action, there may be good reasons not to allow the opt out process simply to await some other event that makes communicating with group members unavoidable.

12    I thus directed the parties to confer with a view to agreeing orders in relation to the issuance of opt out notices, which might include information of the kind that the applicants wanted to communicate in the notices that they had earlier proposed. The result was the agreed (save as to costs) regime that I am now ordering.

13    It follows that I do not accept the characterisation of the timing of the opt out process here as “abnormally early”. Other than by requiring opt out to have taken place before the trial of common issues (save with leave of the Court), the Federal Court Act does not prescribe the point in time at which the opt out process should be undertaken: see s 33J(4). A minimum requirement is likely to be that the scope and nature of the case is sufficiently clearly and precisely defined, but otherwise, as Flick J observed in Pharm-a-Care Laboratories Pty Ltd v Commonwealth of Australia (No 4) [2010] FCA 749 at [18], the relevant time “will be dictated by the facts and circumstances of each individual proceeding”. Here, the facts that the pleadings have closed, the group has been clearly and definitely defined, and the issues in the proceeding have thus been defined, coupled with the applicants’ desire to communicate what they contend is an important piece of information to the group which may affect decisions they need to make in relation to their vehicle in coming years, seem to me to provide ample justification for commencing the opt out process at this point in time.

14    The submission that it was the respondent who has pressed for the issue of opt out notices at this point in time is also not capable of being accepted, save without the significant qualification that they did so solely as a response to the applicants’ desire to commence communicating with group members about the proceedings. In circumstances where the applicants wished to provide group members with information relevant to the proceedings, it became necessary to consider how that might be done in such a way as to ensure that any messaging was accurate, effective, and not likely to create confusion amongst both group members, and members of the public more generally. For the reasons I have given, it was my decision that it was appropriate to provide group members with the greater range and detail of information that would be contained in an opt out notice, and to do so in a way that increased the chances that it would come to their attention.

15    It is true that the expense of issuing a notice to group members may need to be incurred again in the future. It is hard to be definitive about whether or not the issuing of opt out notices could have awaited such a moment. In any event, the question of who should pay for the costs of future notices can be considered as and when it becomes necessary to do so. To the extent that the circumstances of the present notification regime (including who paid for it) may be relevant to such a question, then they will no doubt be taken into account.

16    One thing is clear: at some point costs of distributing opt out notices will be incurred. In the ordinary course, as I observed at the outset, the general rule is that those costs would be paid, in the first instance, by the applicants. The factor that precipitated issuing the notices now was the applicants’ desire to give group members certain information. This is not a case where it can be said that the respondent is deriving any particular benefit from the fact that the communication is being sent now, in the terms in which it is being sent. The fact that, if opt out notices were distributed at a different point in time, circumstances may be such as to warrant the cost being shared between the parties does not seem to me to provide a reason to depart from the general rule in the actual situation with which I am confronted.

17    I was thus satisfied that I should make orders in relation to the costs of the process in accordance with those proposed by the respondent.

Associate:

Dated:    22 September 2025

1.     For more information, read the High Court of Australia’s decisions in Williams v Toyota Motor Corporation Australia Ltd [2024] HCA 38 and Capic v Ford Motor Company of Australia Pty Ltd [2024] HCA 39.