Federal Court of Australia

Holt v Mitsubishi Motors Corporation (No 2) [2026] FCA 1191

ORDERS

THE COURT ORDERS THAT:

1.    Leave be granted to the applicants to file and serve a further amended originating process and further amended statement of claim substantially in the form exhibited to the affidavit of Mr Bishop dated 17 July 2026.

2.    The question of the date on which the amendments take effect be determined at the initial trial.

3.    The applicants pay the respondents’ costs thrown away by reason of the amendment.

4.    The applicants pay the respondents’ costs of the interlocutory application dated 17 July 2026.

5.    The matter stand over to a case management hearing on 27 August 2026 at 9.30 am.

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

REASONS FOR JUDGMENT

Delivered ex tempore

JACKMAN J:

1    By interlocutory application dated 17 July 2026, the applicants seek to amend their pleadings by way of a proposed further amended originating process (FAOP) and a proposed further amended statement of claim (FASC). That application is opposed by the respondents (collectively, Mitsubishi).

2    The applicants bring the proceedings as a representative proceeding under Part IVA of the Federal Court of Australia Act 1976 (Cth) (FCA Act) on behalf of group members who acquired particular motor vehicles (namely, Mitsubishi Triton Utes with model years 2016, 2017 or 2018) in the period 1 May 2015 to 25 November 2021. The first respondent (MMC) manufactured the vehicles outside Australia and the second respondent (MMA) imported the vehicles into Australia for supply to consumers. The proceedings were commenced in November 2021 and have not yet been set down for final hearing. The applicants’ evidence has been filed in relation to the existing pleading, and Mitsubishi’s evidence was in an advanced state when the proposed amendments were first raised.

3    The proceedings concern alleged misrepresentations about the fuel consumption of the vehicles in question. As currently pleaded, the applicants allege non-compliance with the relevant standards by MMC in its emissions testing in 2014, which the applicants claim resulted in understated fuel consumption results appearing on labels applied to the relevant vehicles and in the advertising brochures that replicated those results.

4    After the proceedings were commenced, the High Court delivered judgment in Mitsubishi Motors Australia Limited v Begovic [2023] HCA 43; (2023) 280 CLR 242 (Begovic), holding that offering a vehicle for sale with a fuel consumption label affixed to it as required by the Commonwealth-mandated standard was not misleading or deceptive conduct within the meaning of s 18 of the Australian Consumer Law (being Sch 2 to the Competition and Consumer Act 2010 (Cth)) (ACL), as the unexpressed assumption which underlay the prohibition in s 18 was that the prohibited conduct was not conduct required to be engaged in by, or with the compulsion of, another law enacted in the interests of consumers. Even though the relevant conduct was voluntary in the sense that the manufacturer and dealer chose to engage in a certain kind of trade or commerce, that was held not to provide an answer to the apparent conflict between the relevant standard and s 18 of the ACL, in circumstances where the manufacturer could not import or supply the vehicles without first applying the fuel consumption label to the windscreen and the dealer could not present or supply the vehicle for sale without maintaining the label as required.

5    The existing pleading seeks to accommodate the reasoning in Begovic by alleging that the fuel consumption label (including its contents) affixed to the vehicles in question was not a label that Mitsubishi was obliged to affix to the vehicles for the purposes of complying with the relevant standard, by reason of the alleged non-compliance with that standard: see [13T].

6    The principal controversy concerning the proposed FASOC relates to new allegations in [33F]–[33H] and [34(ca)] challenging the testing of the relevant vehicles even if that testing complied with the relevant standards, on the basis that:

(a)    the testing was conducted pursuant to an alleged “objective” of MMC during the tests to obtain the lowest possible fuel consumption results;

(b)    MMC chose each of the variables, inputs, options and tolerances used in testing (pleaded by reference to a non-exhaustive list of 15 matters) in a way that was likely to achieve the most favourable (ie the lowest) fuel consumption results for the vehicle; but

(c)    users of the vehicles would not be using the vehicles in the same conditions or configuration as the tested vehicles and therefore could not reasonably be expected to achieve fuel consumption levels as low as those achieved in MMC’s testing process;

(d)    regardless of whether MMC’s testing complied with the relevant standards, the information supplied by MMA through the fuel labels and its marketing was not likely to be a reasonable and reliable indicator of likely fuel consumption; and

(e)    none of that was disclosed to prospective purchasers of the vehicles (referred to as the Alternative Omissions Conduct).

7    The Alternative Omissions Conduct, like the existing allegations, is subject in relation to the so-called Fuel Label Representations to the requirement in [13T] that the applicants establish that the fuel consumption label (including its contents) affixed to the vehicles in question was not a label that Mitsubishi was obliged to affix to the vehicles for the purpose of complying with the relevant standard because of the alleged non-compliance with the standard: see [47].

8    The first basis for Mitsubishi’s opposition to the grant of leave concerns various ways in which it is said that the amendments lack sufficient particularisation and are therefore embarrassing, ambiguous and evasive. There is substantial force in that submission, but I do not regard it as a sufficient basis for refusing leave to amend. The next stage in the pre-trial process will be the question of further discovery, after which the applicants will need to file and serve any further evidence, including expert evidence. There may be a question whether Mitsubishi should file its lay evidence before the applicants’ expert evidence, as Mitsubishi appeared to be proposing in its solicitors’ correspondence of 25 November 2025, although that suggestion may well have been overtaken by the proposed new allegations. I regard the proposed amendments as sufficient to enable any further requests for discovery to be framed by categories, and the provision of further evidence, especially expert evidence, seems to be likely to have the capacity to cure much (if not all) of the current lack of particularisation. In my view, the overarching purpose in s 37M of the FCA Act favours those steps proceeding before any further question of lack of particularisation is to be agitated. If there remains a significant issue in relation to particulars after service of the further lay and expert evidence by the applicants, Mitsubishi will still be able to apply to have aspects of the FASC struck out, although I should not be taken as encouraging that course.

9    The next basis of Mitsubishi’s opposition concerns the lack of an adequate explanation for the significant delay in seeking to amend. The amendments appear to have been prompted by Mitsubishi’s service of an expert report of Dr Grün in October 2025 in anticipation of a potential application for referral of certain issues concerning fuel consumption testing to a referee. However, the applicants do not contend that they were unaware of the industry practices described in that report before it was served. In particular, a report by the European Federation for Transport and Environment entitled “Mind the Gap. Why Official Car Fuel Economy Figures Don’t Match up to Reality”, which is referred to in Dr Grün’s report (p 15) was published in 2013 and disclosed much of the subject matter of the new allegations, as too did a later “Mind the Gap” report in 2016 of which the applicants’ consulting experts were aware. The so-called gap was apparently between official laboratory testing and real-world vehicle performance in Europe.

10    In my view, there is a lack of adequate explanation for delay. I take that into account as a factor tending against the grant of leave, but I do not regard it as a preponderant factor.

11    The next basis for opposing leave consists of a number of grounds of prejudice, namely:

(a)    potential witnesses for Mitsubishi, including one apparently significant witness, no longer being available because of retirement, and the likelihood of their memories having faded;

(b)    the possibility of documents in relation to the newly-alleged “objectives” of MMC and similar states of mind or strategy by third parties no longer being available;

(c)    the duplication of effort in terms of the review of documents and interviewing of witnesses which has already been undertaken; and

(d)    the additional effort and cost of undertaking further discovery, and witness interviews, such that Mitsubishi’s solicitor estimates that the preparation of its evidence will take at least eight months.

12    The evidence in relation to the first two of those grounds of prejudice is too vague and uncertain to provide a compelling reason not to allow the amendment. The third ground can be met by an order for costs thrown away by reason of the amendments. The fourth ground is an ordinary feature of litigation, which can be met by an order for costs, at least if Mitsubishi is wholly successful or perhaps if it succeeds in defending the new allegations.

13    The next basis for opposition is that the new allegations are said to have no reasonable prospects of success in light of the High Court’s decision in Begovic. Mitsubishi submits that the new case alleges that ss 18, 29 and/or 33 of the ACL require that Mitsubishi, when fixing mandated labels to vehicles and when making representations when presenting a vehicle for sale with those labels affixed, must also positively disclose the matters in [33F] and [33G]. In effect, those matters are that those labels are not a reasonable and reliable indicator of likely fuel consumption, do not provide prospective purchasers with a reasonable and reliable means of comparing fuel consumption, and could not and should not be relied on by prospective purchasers.

14    However, in my preliminary and tentative view, there may be a reasonable basis for the applicants to seek to distinguish Begovic. The proposed amendments are couched in terms of choices available to Mitsubishi under the relevant standards, rather than Mitsubishi being duty-bound to affix fuel consumption labels in the particular form in which they appeared. The only element of choice considered in Begovic appears to have concerned whether a manufacturer or dealer chose to engage in that line of trade or commerce. I express no view on the ultimate question whether the reasoning in Begovic applies to the issues raised by the proposed amendments, other than to say that there appears to me to be a reasonable argument that it does not.

15    The final basis for Mitsubishi’s opposition concerns the operation of time bars, noting that leave may be granted to introduce a new claim for relief or a new foundation in law for a claim for relief outside the limitation period where it arises out of the same facts or substantially the same facts as those already pleaded to support an existing claim for relief by the party: r 8.21(1)(g) and r 16.53(2) of the Federal Court Rules 2011 (Cth).

16    In the present case, I do not regard that as a straightforward issue, and I regard the preferable course as being to defer determination of the issue until the initial final hearing.

17    In all the circumstances, I regard it as appropriate to grant leave to the applicants to file and serve the FAOP and FASC, so that all matters in dispute between the parties can be determined in these proceedings. I recognise that that will likely prolong the period required for pre-trial preparation. However, as the docket judge, I am presently unable to hear the matter until April 2028 due to pre-existing hearing commitments, and accordingly the amendments are not likely to cause the hearing of the initial trial to be delayed beyond what would otherwise have occurred.

18    I will hear the parties on 27 August 2026 on an appropriate timetable to undertake the next steps in preparing the matter for trial. As soon as a sufficiently reliable estimate of the hearing time can be given, I will fix the matter for hearing of the initial trial.

19    As to the costs of this interlocutory application, while the applicants have succeeded in obtaining leave, they are seeking an indulgence from the Court and in my view it was reasonable for Mitsubishi to have opposed leave being granted, especially in light of the lack of particularisation and the insufficiency of the explanation for delay. Further, the pleading has been improved by the correspondence from Mitsubishi in relation to earlier drafting. In my view, the appropriate order is that the applicants pay the respondents’ costs of the interlocutory application.

Associate:

Dated:    20 August 2026