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Ford appeal of class action breaks down

The costs awarded to a Melbourne woman who successfully alleged Ford sold her a “lemon” will be remitted to the primary judge.

user iconNaomi Neilson 15 November 2023 Big Law
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Justices David Yates, Jonathan Beach and Kylie Downes of the Federal Court made the order on Tuesday (14 November) morning, six months after the full court heard an appeal brought by Ford and a cross-claim appeal brought by class action lead applicant Biljana Capic.

In the original judgment, which found Ford had breached Australian Consumer Law, Ms Capic was awarded $17,248.19.

“We appreciate that this might leave the primary judge with some imponderables. However, we do not think it would be conducive for the just and efficient determination of Ms Capic’s claim to damages to permit the parties to effectively relitigate that question at this stage of the proceedings,” the full court ruled.

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Ms Capic successfully alleged vehicles manufactured by Ford between July 2010 and December 2016, which contained a transmission known as the DPS6, were not of an acceptable quality.

At the time of the original judgment, the primary judge, Justice Nye Perram, noted there was a “real risk of accident” if an affected Ford vehicle “overtaking another suffers a three-second power loss”.

On the appeal, Ford contended Justice Perram arrived at an “incorrect consideration and misapplication” of the Australian Consumer Law. It added Justice Perram also misconstrued the act “because it is not engaged where the manufacturer remedies the non-compliance but does not do so within a reasonable time”.

All these aspects of the appeal failed.

In the cross-appeal, Ms Capic succeeded in contending Justice Perram should have found the “architectural deficiencies” in the affected vehicles gave rise to a “superadded propensity for affected vehicles to experience troubling vehicle behaviours”.

Ms Capic was also successful in her submission that Justice Perram should have found a separate cause of action for each risk that was found to be established in an affected vehicle.

However, her contentions that Justice Perram should have found the characteristics of “firm gear shifting and a slight shunting sensation were a consequence of inadequate arrangements for damping of torsional vibrations” had failed,

She also failed in her argument that Justice Perram should have found the vehicles were not of appropriate quality because of the “usual propensity for servicing, repair and/or replacement of the dual-clutch assembly” and because of the risk of solder cracking.

To reach a conclusion, the full court relied on a judgment in Toyota Motor Corporation v Williams and determined Justice Perram should have held subsequent events were capable of bearing on the proper assessment of reduction in value damages.

The full court also determined that when assessing damages to Ms Capic, Justice Perram should have taken into account the facts known at trial – being the repairs – and the use by Ms Capic of her vehicle so that she would not be over-compensated.

“Ms Capic ought to have been, but was not, awarded pre-judgment interest on the damages awarded for excess amounts of GST, stamp duty and financing costs,” the summary of the judgment read.

“The question of Ms Capic’s damages will be remitted for redetermination on the basis of evidence already before the primary judge.”

Naomi Neilson

Naomi Neilson

Naomi Neilson is a senior journalist with a focus on court reporting for Lawyers Weekly. 

You can email Naomi at: This email address is being protected from spambots. You need JavaScript enabled to view it.

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