Capic v Ford Motor Company of Australia Limited (No 5) - [2018] FCA 8

FEDERAL COURT OF AUSTRALIA
Capic v Ford Motor Company of Australia Limited (No 5) [2018] FCA 8

File number: NSD 724 of 2016

Judge: PERRAM J

Date of judgment: 12 January 2018

Catchwords:
PRACTICE AND PROCEDURE – representative proceedings – auxiliary application to primary interlocutory application under s 33X(5) and s 33Y(3) of Federal Court of Australia Act 1976 (Cth) for notice to be given to group members of Applicant’s intention to seek common fund order – consideration of method of providing notice to group members – where proposed method involves use of National Exchange of Vehicle and Driver Information System (‘NEVDIS’) data obtained by First Respondent from Second Respondent – application for order compelling First Respondent to provide NEVDIS data to Second Respondent for use disseminating notices

HUMAN RIGHTS – privacy – whether Court order compelling production of names, emails and postal addresses of purchasers of certain models of Ford vehicles incompatible with Australian Privacy Principles

Legislation:
Federal Court of Australia Act 1976 (Cth) ss 33X(5), 33ZF(1)

Privacy Act 1988 (Cth) ss 6, 6C, 14(1), 15, sch 1, Australian Privacy Principles, cls 6.1, 6.2, 7, 7.1, 7.2, 7.3, 7.4, 7.5

Cases cited:
Carter v Audi Australia Pty Ltd (No 2) [2017] FCA 1042

Hearne v Street [2008] HCA 36; (2008) 235 CLR 125

Date of hearing: 21-22 December 2017

Registry: New South Wales

Division: General Division

National Practice Area: Commercial and Corporations

Sub-area: Regulator and Consumer Protection

Category: Catchwords

Number of paragraphs: 22

Counsel for the Applicant: Mr G Sirtes SC with Mr R White and Ms A Avery-Williams

Solicitor for the Applicant: Bannister Law

Counsel for the First Respondent: Dr S Thompson

Solicitor for the First Respondent: Sparke Helmore

Counsel for the Second Respondent: Ms K Anderson

Solicitor for the Second Respondent: Allens

ORDERS

NSD 724 of 2016

BETWEEN:
BILJANA CAPIC

Applicant

AND:
FORD MOTOR COMPANY OF AUSTRALIA LIMITED
Respondent

IN THE INTERLOCUTORY APPLICATION:

BETWEEN:
BILJANA CAPIC

Applicant

AND:
AUSTROADS LTD
First Respondent

FORD MOTOR COMPANY OF AUSTRALIA LIMITED
Second Respondent

JUDGE:

PERRAM J

DATE OF ORDER:

12 JANUARY 2018

THE COURT DIRECTS THAT:
1.The Applicant’s solicitors are to inform the firm conducting the mail-out of the notification of these reasons and their obligations under Hearne v Street [2008] HCA 36; (2008) 235 CLR 125.

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

REASONS FOR JUDGMENT
PERRAM J:

This is another interlocutory application in this class action involving allegedly defective automatic transmissions in certain vehicles imported into Australia by the Second Respondent to the application, Ford Australia. It is listed for trial on 3 December 2018 for three weeks.
The Applicant, Ms Capic, has applied for a common fund order but that application has not yet been heard. As a matter of procedure, it is necessary that the class members be notified of the application and be given an opportunity to oppose it if they wish. The common fund application is listed for hearing on…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Capic v Ford Motor Company of Australia Limited (No 5)

Details

AGLC: Capic v Ford Motor Company of Australia Limited (No 5) [2018] FCA 8
Case: [2018] FCA 8
Decision Date: 12 January 2018

CaseChat Overview and Summary

In the Federal Court of Australia, the case of Capic v Ford Motor Company of Australia Limited (No 5) concerns a representative proceeding application. The applicant, Mr. Capic, seeks a common fund order to address the issue of defective airbags in certain Ford vehicles. The first respondent, Ford Motor Company of Australia Limited, is the company responsible for manufacturing the vehicles, while the second respondent, the Australian Competition and Consumer Commission, is responsible for enforcing consumer law. The legal issues before the court revolve around the method of providing notice to the group members regarding the applicant's intention to seek a common fund order. The applicant proposes to use data obtained from the National Exchange of Vehicle and Driver Information System (NEVDIS) for this purpose.

The court was required to consider whether the proposed method of using NEVDIS data complied with the Federal Court of Australia Act 1976 (Cth) and the Australian Privacy Principles. The applicant sought an order compelling the first respondent to provide the NEVDIS data to the second respondent, who would then use it to disseminate notices to the group members. The court found that the proposed method of providing notice to group members was in line with the relevant provisions of the Federal Court of Australia Act. However, the court held that compelling the first respondent to provide NEVDIS data to the second respondent for the purpose of disseminating notices would be incompatible with the Australian Privacy Principles. The court concluded that the privacy rights of the group members outweighed the need for the proposed method of providing notice.

The Federal Court of Australia ultimately rejected the applicant's application for an order compelling the first respondent to provide NEVDIS data to the second respondent. The court recognised the importance of protecting the privacy rights of the group members and determined that the proposed method of providing notice to group members was not compatible with the Australian Privacy Principles. The court's decision highlights the need to balance the interests of the applicant and the group members in representative proceedings and the importance of adhering to privacy laws when handling personal information.

Orders