Federal Court of Australia

Williams v Toyota Motor Corporation Australia Limited (Suppression Orders) [2026] FCA 1518

ORDERS

THE COURT ORDERS THAT:

1.    The application for suppression or non-publication orders be dismissed.

2.    The application for approval of the proposed settlement pursuant to s 33V of the Federal Court of Australia Act 1976 (Cth) be listed for hearing at 10:15am on 20 November 2026.

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

REASONS FOR JUDGMENT

(Delivered ex tempore, revised from the transcript)

LEE J:

1    These large representative proceedings were commenced as long ago as 2019. The matter has been the subject of numerous interlocutory judgments, an initial trial judgment and subsequent appeals. The proceedings were listed for a resumed initial trial commencing on 19 October 2026 for a period of two weeks.

2    On 14 September 2026, following three days of mediation before the Honourable T F Bathurst AC KC, the parties reached an agreement in principle to settle the proceedings. On 22 September 2026, the applicants, the respondent, Quinn Emanuel Urquhart & Sullivan LLP and Balance Legal Capital I UK Limited executed a deed recording the terms upon which they agreed to settle the matter, subject to Court approval (Settlement Deed). The Settlement Deed provides for Toyota to pay a total settlement sum of $750 million, inclusive of costs (including the applicants’ legal costs) and any payment to the litigation funder.

3    The Settlement Deed was subject to a condition precedent requiring approval of the proposed settlement by the board of the respondent’s parent company, Toyota Motor Corporation (TMC). By letter dated 7 October 2026, the respondent’s solicitors confirmed that TMC’s board had approved the settlement, with the consequence that the Settlement Deed became binding and effective.

4    What remains are applications for approval of the proposed settlement pursuant to s 33V of the Federal Court of Australia Act 1976 (Cth) (FCA Act), as is required in a representative proceeding. It is in the interests of the parties and the large number of group members that the approval applications be determined with celerity. The applications have been listed for hearing at 10:15am on 20 November 2026, which is the first practicable time at which they can be heard (following modification of the applicants’ proposed timetable, which was more leisurely than the orders I propose to make).

5    In addition to this proposed timetable, the applicants’ proposed orders sought an interim suppression or non-publication order under s 37AI of the FCA Act. Section 37AI provides:

37AI    Interim orders        

(1)    If an application is made to the Court for a suppression order or non-publication order, the Court may, without determining the merits of the application, make the order as an interim order to have effect, subject to subsection (2), until the application is determined.

(2)    If the Court makes an interim order, the Court must determine the application as a matter of urgency.

6    I recently stressed the need for practitioners to be cognisant of the requirement in s 37AI(2) that, where an interim order is made without determining the merits of the application, the application must be determined as a matter of urgency. In Berryman v NextDC Limited [2026] FCA 1065, I said (at [7]–[8]):

The statutory scheme reflects the primacy of open justice. Section 37AE of the FCA Act requires the Court, in deciding whether to make a suppression or non-publication order, to take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice...

Section 37AI of the FCA Act permits the Court to make an interim order without determining the merits of the application, but, if such an order is made, the application must be determined as a matter of urgency: s 37AI(2). Interim orders are just that. They are not to be put in place so as to achieve the practical outcome of a final order.

7    The proposed interim order in the present proceedings was expressed to operate pending the settlement approval hearing. That hearing was proposed to be in December. Its practical effect would therefore have been to establish a confidentiality regime pending its proposed replacement by a final suppression or non-publication order at that hearing.

8    Such a course cannot be reconciled with the statutory scheme in Pt VAA of the FCA Act. Urgent means urgent; an interim order cannot serve as a holding device by which the practical benefit of final relief is obtained without prompt adjudication. I therefore heard argument on the basis that the parties sought a final suppression or non-publication order.

9    Two bases were advanced in support of that application. The first was that the parties had entered into the Settlement Deed, cl 12.1 of which provides:

12.1    Confidentiality

(a)    Subject to any order of the Court and to sub-clause (b) below, the Deed will remain confidential unless and until Approval Orders are made.

(b)    Subject to any order of the Court, the following matters will remain confidential at all times:

(i)    the basis on which the Settlement Sum has been calculated;

(ii)    the Distribution Methodology;

(iii)    the reduction in value amounts (in dollar or percentage terms) applied to calculate Group Member Settlement Payments; and

(iv)    the precise basis on which individual Group Member Settlement Payments are calculated under the Settlement Scheme.

(c)    Evidence relied upon to obtain Court approval about the basis on which the Settlement Sum has been calculated, the Distribution Methodology and the calculation of Group Member Settlement Payments will be adduced on a confidential basis and be subject to an application for non-publication orders.

(d)    No party will make any public statement or announcement about the Settlement until the hearing of any application for Preliminary Orders. Following the hearing of any application for Preliminary Orders, subject to any order of the Court and to sub-clause 12.1(e) below, no party will make any public statement or announcement about the Settlement without the written consent of the other party, except to disclose that:

(i)    the parties have reached an agreement to settle the DPF Class Actions, subject to Court approval;

(ii)    the total Settlement Sum payable by Toyota is $750 million, inclusive of costs (including the Applicants’ Legal Costs) and any payment to the Funder;

(iii)    Approval Orders will be sought on the basis that only Registered Group Members are entitled to participate in the Settlement;

(iv)    the average amount payable to Registered Group Members, before accounting for any Court approved deductions for the Applicants’ Legal Costs, the costs of administration of the Settlement Scheme and any payment to the Funder, is expected to be between approximately:

(A)    $9,600 and $11,600 for people who acquired their vehicle new and still own it;

(B)    $2,860 and $5,900 for people who acquired their vehicle used and still own it;

(C)    $1,800 and $1,900 for people who acquired their vehicle new and no longer own it; and

(D)    $300 and $780 for people who acquired their vehicle used and no longer own it; and

(v)    the precise amount payable to Registered Group Members will vary depending on the following factors:

(A)    whether the vehicle was purchased new or used;

(B)    when the vehicle was purchased;

(C)    the vehicle purchase price;

(D)    whether the Group Member is a current or former owner;

(E)    whether or not the 2020 Field Fix has been applied;

(F)    any vehicle finance; and

(G)    any out of pocket expenses (such as lost income).

(e)    Nothing in this clause 12.1 will prevent any party from:

(i)    taking the steps necessary to seek to obtain the Preliminary Orders, Approval Orders and/or Funding Orders; or

(ii)    disclosing information as required by law.

10    The second basis advanced was that the proposed notice to group members set out the substance of the matters which cl 12.1(d) permitted the parties to disclose and would therefore sufficiently apprise group members of the material features of the proposed settlement.

11    It was further submitted that permitting access to the whole of the affidavit of Matthew Mackenzie affirmed on 9 October 2026, including those passages over which confidentiality was sought, might give rise to “stress and anxiety” among group members who might somehow misunderstand the basis upon which the proposed settlement was reached or the proposed distribution of the settlement sum.

12    In the context of these large representative proceedings, I do not consider that those matters provide a reasonable basis, much less a sufficient basis, for making the order sought.

13    In Farrell v Super Retail Group Limited (Confidentiality Applications) [2024] FCA 954, I emphasised that the principle of open justice is an indispensable feature of the Australian judicial system. As noted above, s 37AE of the FCA Act requires the Court, in deciding whether to make a suppression or non-publication order, to take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice. The power may be exercised only upon one of the grounds specified in s 37AG. The only ground said to be relevant here is that the order is necessary to prevent prejudice to the proper administration of justice: s 37AG(1)(a).

14    Those considerations assume particular significance in large representative proceedings. If approved, the proposed settlement will affect the rights of group members who are not parties before the Court. The Court performs a protective and supervisory role in relation to these absent persons. The responsibility imposed upon the Court is an onerous one.

15    It is the Court’s function to approve a notice which informs group members, in readily comprehensible terms, of the substance of the proposed alteration of their rights and affords them an opportunity to object to the proposed settlement. It is not the Court’s function to prevent group members from obtaining access to the material placed before the Court in support of the settlement approval application unless there is a real demonstrated need to protect identifiable confidential information which ought not be disclosed (and hence the order is necessary to prevent prejudice to the proper administration of justice). The parties may covenant between themselves for confidentiality, but they cannot, by private agreement, dictate the conditions upon which a court exercising public power will receive and determine their application.

16    In large representative proceedings, an order restricting group members’ access to material bearing upon the proposed settlement is likely to be exceptional. Group members have a legitimate interest in understanding the proposed terms upon which the proceedings are to be resolved, the manner in which any proposed distribution will occur, and the amounts proposed to be deducted from the gross settlement sum before the balance is distributed to them.

17    The notion that a group member should be spared access to relevant information lest it occasion perplexity or disquiet smacks of paternalism. An atypically curious group member is entitled to make whatever legitimate enquiries are open to the group member in making an informed decision whether to object.

18    For these reasons, I decline to make either the proposed interim order or a final order in equivalent terms.

Associate:

Dated: 13 October 2026