Capic v Ford Motor Company of Australia Limited (Form of Common Questions)

[2020] FCA 884

FEDERAL COURT OF AUSTRALIA

Capic v Ford Motor Company of Australia Limited (Form of Common Questions) [2020] FCA 884

File number:	NSD 724 of 2016
Judge:	PERRAM J
Date of judgment:	22 June 2020
Date of publication of reasons:	25 June 2020
Catchwords:	PRACTICE AND PROCEDURE – representative proceedings pursuant to Pt IVA of Federal Court of Australia Act 1976 (Cth) – where form of common questions to be answered disputed – whether common questions should be framed with reference to pleadings –proper construction of pleadings
Cases cited:	Capic v Ford Motor Company (No 3) [2017] FCA 771
Date of hearing:	22 June 2020
Registry:	New South Wales
Division:	General Division
National Practice Area:	Commercial and Corporations
Sub-area:	Regulator and Consumer Protection
Category:	Catchwords
Number of paragraphs:	6
Counsel for the Applicant:	Mr I R Pike SC with Ms F Roughley and Mr P Strickland
Solicitor for the Applicant:	Corrs Chambers Westgarth
Counsel for the Respondent:	Mr C Scerri QC with Ms K Anderson and Mr T Farhall
Solicitor for the Respondent:	Allens

REASONS FOR JUDGMENT
(REVISED FROM TRANSCRIPT)

NSD 724 of 2016

BETWEEN:

BILJANA CAPIC

Applicant

AND:

FORD MOTOR COMPANY OF AUSTRALIA LIMITED ACN 004 116 223

Respondent

PERRAM J:

1. A question has arisen between the parties as to the formulation of appropriate common questions for the trial.  There are, so far as these reasons are concerned, two issues.  The first is whether the common questions should be framed in terms of the pleadings or whether, instead, a paraphrasing of those pleadings will suffice.  In my opinion, it would be dangerous to frame the common questions other than by reference to what is formally alleged and I therefore conclude that a form of common questions should be adopted which is done only by reference to the pleadings.

2. The second question is more substantive.  It concerns the proper construction of §6AB of the Fourth Further Amended Statement of Claim.  The question is, essentially, whether each of the quality issues which is identified in §6AB(a) is then to be connected to the performance issues then set out in §6AB(b).  The resolution of that question is assisted by a consideration of the question which the Court considered in Capic v Ford Motor Company (No 3) [2017] FCA 771 (‘Capic (No 3)’).  At that particular juncture in this litigation, Ms Capic’s pleading alleged a series of symptoms that were said to be unsatisfactory to her.  At that point there had been the contention floated by the Respondent that the class action should be declassed.  The thinking underpinning that contention was that whilst there was nothing in principle wrong with an applicant in an acceptable quality case alleging a constellation of symptomology, that genus of allegations was not suitable for a class action.

3. Here the thinking was that Ms Capic might well be able to demonstrate that her vehicle was unsatisfactory because it shook and shuddered in a particular way, but a different member of the class might have an entirely different defect.  The car might stop unexpectedly; the car might suffer a sudden and unforeseen loss of power.  The point which Ford made at that time was that a class action built on that kind of architecture would never present any common questions because the symptomology for each class member would differ and there could not be or would likely not be any common theme to it.  The proposition was therefore advanced that if the matter was to proceed as a class action, it was necessary for the defects or the symptoms to be said to be manifestations of some underlying difficulty which would be common to the members of the class.  I accepted that argument in Capic (No 3) at [6]-[12].

4. That brought forth a further version of the pleading which gave effect to that conclusion.  In construing §6AB(a) and §6AB(b) it is therefore appropriate to observe that if §6AB(b) is freestanding, then it alleges a symptomology case of the kind which in Capic (No 3) I indicated could not be brought in a class action because it would not be able to generate common questions.  So to the extent that there is an ambiguity in the way §6AB is drafted, I would prefer a construction which meant that the proceeding continued to be appropriate to be conducted as a class action.

5. However, it is also relevant to note that the common questions which are now put forth by the Applicant, particularly Question 4 and following, seem to assume that the construction Ford advanced is the correct one, that is to say, the symptomology case is not being advanced independently of the transmission faults.  I take comfort, therefore, that the proper construction of §6AB(b) is as Ford suggests, principally for two reasons.  The first is that it is consistent with what I held in Capic (No 3), and secondly, it appears to be consistent with what the Applicant has done with her questions in any event.

6. Accordingly, the common questions will go forward as follows: (a) they are to be defined by reference to the pleadings; (b) they are to be framed on the basis that an independent symptomology case is not being advanced.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram.

Associate:

Dated:       25 June 2020