By way of background:
- On 29 June 2021, Perram J, delivered judgment in Capic v Ford Motor Company Australia Pty Ltd [2021] FCA 715, which dealt with the Applicant’s claim and a set of issues common to the claims of group members, commonly known as “Common Questions”. In the judgment, his Honour found that Ford vehicles sold in Australia between 2010 and 2017, that were fitted with a transmission known as “DPS6” had breached the guarantee of acceptable quality in the Australian Consumer Law (ACL). Although aggregate damages (which refers to a method of calculating damages on a group-wide basis) for all group members were not resolved, the Applicant was successful in establishing claims of reduction in the vehicle’s value as well as other damages she had incurred.
- On 3 November 2021, in Capic v Ford Motor Company of Australia Pty Ltd (Revised Common Questions) [2021] FCA 1320, Perram J then delivered judgment on a revised list of common questions and answers that arose in both the Applicant’s claim and the claims of group members in order to give effect to the conclusions that were reached in the initial trial of which the judgment was delivered on 29 June 2021.
This particular judgment, delivered on 15 November 2021, dealt with an application by the Applicant seeking an order for costs from the Respondent to pay her costs of the proceedings to date (except for costs related to certain expert economic evidence).
The Respondent sought an order that the Applicant pay its costs of the aggregate damages issue which the Respondent had argued had been finally determined in its favour.
Upon considering the submissions from the parties, his Honour concluded that the time was “not ripe for a determination as to the costs of the initial trial”. His Honour stated that the only “event” that had occurred, for the purposes of considering whether to award costs following the event, was the event that the Applicant was successful in her individual claim (and was awarded damages including interest). His Honour further stated that the group’s entitlement to damages, which the Applicant argued was yet to be determined, remained unknown and remained open to the Respondent to establish defences to all of the group claims under ss54(5) and 271(6) of the ACL.
His Honour concluded that it was not appropriate at this juncture of the proceedings to make an order for costs of the proceeding to date but should be revisited at a time when “the gravamen of the Applicant’s case…has been determined, and the parties’ relative success or failure ascertained”. Whether the Respondent appeals the judgments delivered to date remains to be seen and may only be a matter of time.
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