Between 2011 and mid-2016, Ford sold approximately 70,000 Focus, Fiesta and Ecosport vehicles fitted with a PowerShift dual-clutch transmission in Australia.
The class action is for the benefit of any person who bought or leased (or otherwise acquired an interest in) any of the Ford models described below at any stage over the period 1 January 2011 to 29 November 2018.
| FORD FOCUS | |
|---|---|
| Model | Build Year |
| Titanium LW or Titanium LW MKII | 2011 - 2015 |
| Sport LW or Sport LW MKII | 2011 - 2015 |
| Trend LW or Trend LW MKII | 2011 - 2015 |
| Ambiente LW or Ambiente LW MK II | 2011 - 2015 |
| FORD ECOSPORT | |
|---|---|
| Model | Build Year |
| Titanium BK | 2013 - 2016 |
| Trend BK | 2013 - 2016 |
| Ambiente BK | 2013 - 2016 |
| FORD FIESTA | |
|---|---|
| Model | Build Year |
| ZETEC WT | 2010 – 2013 |
| LX WT | 2010 – 2013 |
| CL WT | 2010 – 2013 |
| Sport EcoBoost WZ | 2012 - 2015 |
| Trend WZ | 2013 – 2016 |
| Ambiente WZ | 2013 - 2016 |
On 29 June 2021, Justice Perram delivered his decision in relation to the Ford Class Action, together with his Honour’s reasons for it. We are pleased to advise that the applicant was successful in her claim for damages, and on key aspects of her claim for group members. Ford was ordered to pay $17,248.19 (including interest) to Ms Capic. In particular, the Court found that the Affected Vehicles suffered from certain component and design deficiencies, and that they were therefore not of "acceptable quality" within the meaning of the Australian Consumer Law. A copy of the judgment is available on the Federal Court’s website (https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2021/2021fca0715).
On 3 November 2021, the Court gave judgment on the "common questions" – that is, issues which arose in Ms Capic’s claim and also arise in group members’ claims. Broadly speaking, group members need to show (1) Ford is liable and (2) they have suffered loss as a result. The November judgment concerned whether Ford is liable to group members. The Court has now made orders which give effect to this judgment. This decision is important because group members can rely on these findings, and will not have to prove those separately. A copy of the judgment is available on the Federal Court’s website (https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2021/2021fca1320).
The two judgments given this year are important steps, but so far, there has been no decision about how much compensation group members may be entitled to. The Court has left open the possibility of loss being determined on an aggregate basis (ie, all group members together).
On 1 February 2022, Ford lodged an appeal against the two judgments. On 24 February 2022, Ms Capic was granted permission to appeal aspects of the judgments that went against her, and affirming parts of the judgments that went in her (and group members’ favour). A copy of the judgment is available on the Federal Court’s website (https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2022/2022fca0155).
On 26 August 2022, the Court made orders for a notice to be displayed on this website which provides group members with an update on the status of the proceedings. A copy of the notice is available here.
Between 20 and 28 March 2023, an appeal hearing was held before Justice Yates, Justice Beach and Justice Downes of the Full Court of Federal Court of Australia.
On 14 November 2023, the Full Court handed down its decision on an appeal brought by Ford and a cross appeal brought by Ms Capic. Ms Capic has enjoyed substantial success on the appeal. The Full Court has upheld the primary judge’s findings that the Affected Vehicles were not of an acceptable quality. In addition to the defects found to exist by the Trial Judge, the Full Court also found all vehicles had a superadded propensity to experience troubling vehicle behaviours, as a result of architectural deficiencies. Ford succeeded in part, with the Full Court also finding that the Trial Judge should have considered some other factors when determining how much to award Ms Capic in damages. The matter will be sent back to the Trial Judge to re-determine the amount of damages Ms Capic should be awarded. The Full Court did not express a view as to whether Ms Capic’s damages should be increased, decreased or should stay the same. The Full Court was not asked to determine the damages payable to group members. A copy of the Full Court’s judgment is available on the Federal Court’s website (https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/full/2023/2023fcafc0179) and a summary is available (https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/full/2023/2023fcafc0179/summary/2023fcafc0179-summary). The orders made by the Full Court on 13 December 2023 are available (https://www.comcourts.gov.au/file/Federal/P/NSD1321/2021/3931250/event/31642860/document/2209359).
On 10 January 2024, Ms Capic lodged an application for special leave to appeal aspects of the Full Court’s decision. That application was granted on 13 February 2024. The grant of special leave is available here.
On 11-12 April 2024, the High Court heard Ms Capic’s appeal. In her appeal, Ms Capic asked the High Court to determine how damages are to be assessed under the Australian Consumer Law in cases where the statutory guarantee of acceptable quality has been breached when a vehicle has been supplied with an unacceptable risk of failure. Ms Capic’s appeal was heard immediately after another case raising similar issues. The other case was Williams v Toyota Motor Corporation Australia Limited. A video-recording of Ms Capic’s appeal to the High Court can be viewed on the High Court’s website, and transcripts are also publicly available:
The outcome of the High Court appeal in Ms Capic’s matter and in Williams v Toyota may impact how group members’ damages are to be assessed. While we do not know when the High Court will issue its judgment on the appeal, we expect that it will give judgment this year. When the High Court gives judgment, the Trial Judge may be asked to re-assess Ms Capic’s damages.
We do not expect the Trial Judge will take any further steps in respect of the re-assessment of Ms Capic’s damages, or the assessment of group members’ damages, until after the High Court has dealt with Ms Capic’s appeal.
We will endeavour to consider all options, going forward, and will keep you up to date with progress in the case.
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