11 July 2017: Federal Court asks whether a class action can be used for a claim about quality guarantees in the Australian Consumer Law.

Capic v Ford Motor Company (No 3) [2017] FCA 771

The judgment granted the plaintiff’s request for leave to file an amended application and statement of claim.

The underlying case is about alleged problems with Ford transmissions resulting in a range of symptoms. The transmission problem might be common to vehicle owners, but the symptoms may vary:

 “Different cars may misbehave in different ways. Some may only misbehave when they are not being inspected for faults; some may be undrivable; others intermittent. The range and depth of the symptoms may be very broad indeed.”

That lack of commonality across vehicle owners was a potential problem for the case, because a class action must involve a substantial common issue across group members (s.33C(1) of the Federal Court Act 1976). For that reason Ford had applied for an order preventing the case going ahead as a class action (invoking s.33N).

In response, the Plaintiff proposed pleading amendments to allege that the transmissions in all group members’ vehicles were commonly defective. The pleading also argued that all of the relevant vehicles had a “propensity” to cause symptoms, and listed the symptoms in the plaintiff’s own vehicle. Ford opposed the amendment. It argued, amongst other things, that by alleging both the defect plus the symptoms, the proposed statement of claim was flawed because the allegation had to be for one or the other, otherwise there were redundant allegations. Ford also submitted that “propensity” was too vague an allegation for a pleading, as inadequately argued causation by the defective transmission to specific symptoms.

The Court criticised the wording which the plaintiffs’ lawyers used for the proposed amendment:

• [it] “is not circular, just clumsy.”
• “I certainly think that this is not the finest pleading I have seen but I would hesitate to say it was ‘too complex’.  ‘Ugly’ perhaps, ‘ungainly’ – certainly – ”)

But ultimately the Court did not uphold Ford’s opposition, and gave a greenlight to the amendment, even commenting on Ford’s position that: “It is, with respect, a little odd to complain about a pleading and then to complain that your complaint has been addressed.”

Quite interesting for product liability cases where propensity may be an issue, the court stated:

“Although concepts such as propensity and tendency are evaluative standards ultimately requiring the application of judgment, this does not mean they are uncertain or that a question posed in terms of propensity is unclear or indeterminate.”

And in dealing with Ford’s submission that the plaintiff’s lawyers should have responded more diligently when Ford first complained about the defect v. symptoms issue, the Court noted that the plaintiff was “not required to treat everything emanating from Ford’s advisors as procedural gospel.  As Ford’s position on this very application shows, its procedural instincts are not always sound.”.

This is a summary only, selective as to content. The judgment deals with more matters than mentioned above, and greater nuances on the above matters.

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