Capic v Ford Motor Company of Australia Pty Ltd (Notice to Class Members)
[2022] FCA 974
•19 August 2022
FEDERAL COURT OF AUSTRALIA
Capic v Ford Motor Company of Australia Pty Ltd (Notice to Class Members) [2022] FCA 974
File number: NSD 724 of 2016 Judgment of: PERRAM J Date of judgment: 19 August 2022 Catchwords: PRACTICE AND PROCEDURE – application to provide notice to class members – where notice includes information about appeal – where parties consent to distribution of notice Legislation: Federal Court of Australia Act 1976 (Cth) ss 33X(5), 33ZC(7) Division: General Division Registry: New South Wales National Practice Area: Commercial and Corporations Sub-area: Regulator and Consumer Protection Number of paragraphs: 8 Date of hearing: 18 August 2022 Counsel for the Applicant: Mr P Strickland Solicitor for the Applicant: Corrs Chambers Westgarth Counsel for the First Respondent: Mr M Costello and Mr T Farhall Solicitor for the First Respondent: Allens Counsel for the Second Respondent: Dr S Thompson Solicitor for the Second Respondents: Sparke Helmore Lawyers ORDERS
NSD 724 of 2016 BETWEEN: BILJANA CAPIC
Applicant
AND: FORD MOTOR COMPANY OF AUSTRALIA PTY LTD ACN 004 116 223
First Respondent
AUSTROADS LIMITED ACN 136 812 390
Second Respondent on the interlocutory application
ORDER MADE BY:
PERRAM J
DATE OF ORDER:
19 AUGUST 2022
THE COURT ORDERS THAT:
1.The parties bring in a short minute of order giving effect to these reasons within 7 days.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
PERRAM J:
Judgment was given in this matter on 29 June 2021. An appeal is listed for hearing on 20 March 2023 with an estimate of 10 days. The Applicant, with the consent of the First Respondent (‘Ford’), seeks orders for the distribution to class members of a notice. The proposed notice provides information to the class members about the outcome of the trial, the pendency of an appeal, cross-appeal and notice of contention and the fact that if the proceeding is successful, the funder, Martin Place Litigation Services Pty Ltd, will apply for a common fund order not exceeding 25% of the net proceeds that may be paid to class members. The proposed notice also encourages members to register at the website
The Court has power to order distribution of the notice: Federal Court of Australia Act 1976 (Cth) s 33X(5). There is a further power to direct that a person or persons be notified of an appeal from a judgment given in a representative proceeding: s 33ZC(7). Since the power in s 33X(5) is sufficient, I would reserve for another occasion whether the power in s 33ZC(7) is also sufficient to support a notice which, as here, does more than notify class members of the existence of an appeal.
The process of contacting the class members will be expensive. The distribution and notification of the opt-out notices prior to trial cost in the vicinity of $100,000.00. Whilst the Applicant does not intend to publish the proposed notice in any newspapers, as she did in the case of the opt-out notices, it is nevertheless apparent that the process will still be expensive and time consuming.
The notice does not require the class members to do anything or to make any decision although they will, no doubt, be better informed upon its receipt. The existing class members are those who have not opted-out of the proceeding. The time to opt-out has passed. In due course, the appeal will take its course as, perhaps, may the proceedings at first instance. Nothing the class members do now can impact on what is going to happen nor is their position affected by any decision they must make on the basis of the information in the notice. As such, the notice appears to me to serve little direct purpose.
It does serve the purpose of providing information which is a legitimate input for the purposes of s 33X(5). However, where the information is not connected to a decision which must be made by the class members, I would afford this little weight. What weight it has relates to the fact that judgment has been given and an appeal and cross-appeal have been filed. These are significant events in the life of the proceeding. Even so, balanced against the cost and effort that will be required to send the notice, this admittedly interesting information does not warrant the making of the orders sought.
Mr Strickland of counsel who appeared for the Applicant, submitted that if the Court were not minded to order the distribution of the notice, it might alternatively consider the more modest proposal of ordering that the notice be posted on the website, the Federal Court’s website and in the part of Ford’s website concerned with ‘powershift’ and the DPS6. I accept this submission. The cost of doing so will be negligible. Whilst the importance of the notice to class members is low, the fact that this method of distribution will essentially be cost free means that the discretion in s 33X(5) should be exercised in the Applicant’s favour.
A significant aspect of this conclusion is that the information in question is, as Mr Strickland correctly observed, in the nature of a significant milestone. I do not think that ordinarily the power in s 33X(5) would be available to direct the posting of notices online on the occurrence of an interesting a development in the litigation.
I will make the order sought set out in order 3(e) of the consent orders. I will also make order 5 which deals with costs although it may need some adjustment now that Austroads Limited is not to be involved in the process of contacting class members.
I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Perram. Associate:
Dated: 19 August 2022
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