Capic v Ford Motor Company of Australia Pty Ltd

1. Subject to further order and without prejudice to any existing costs order in the proceeding, the question of costs be deferred until group members' entitlement to damages (whether on an individual or aggregate basis) is known. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

PERRAM J: 1 On 29 June 2021, I delivered judgment on the trial of Ms Capic's claim and a set of issues common to the claims of group members: Capic v Ford Motor Company of Australia Pty Ltd [2021] FCA 715 ('Trial Reasons'). On 3 November 2021, I delivered judgment on the revised list of common questions and answers to give effect to the conclusions arrived at in the Trial Reasons: Capic v Ford Motor Company of Australia Pty Ltd (Revised Common Questions) [2021] FCA 1320 ('Revised Common Questions Judgment'). 2 The Applicant now seeks her costs. More specifically, the Applicant seeks an order that the Respondent ('Ford') pay her costs of the proceeding to date, save for the costs of and incidental to the expert economic evidence of Mr Stockton and Dr Strombom. That evidence bears upon the group claim for aggregate damages which the Applicant notes has not yet been determined. 3 For its part, Ford seeks an order that the Applicant pay its costs of the aggregate damages issue which Ford regards as finally determined in its favour. Ford submits that, apart from that issue, the Applicant should have her costs of the proceeding to date subject to a 20% reduction to reflect: the Applicant's substantial failure on the so-called Architectural Deficiencies; the time and costs wasted by the evidence of 52 lay witnesses which was led by the Applicant to no useful effect; the abandoned claim of unconscionable conduct; and, the failure of the misleading or deceptive conduct case. 4 Having considered the parties' written submissions, I have concluded that the time is not ripe for a determination as to the costs of the initial trial. The ordinary rule, as the Applicant pointed out at s3 of her written submissions, is that costs follow the event. The difficulty at the present juncture is that the only 'event' that can truly be said to have occurred, in the sense of having been resolved definitively, is that Ms Capic was successful in her individual claim and was awarded damages in the sum of $17,248.19 including interest. The group's entitlement to damages - whether on an individual or aggregate basis - remains unknown. 5 True it is that the Applicant enjoyed considerable (but not total) success in the initial trial. And true it is that many of the findings in the Trial Reasons are favourable to the claims of group members. However, as I explained in the Revised Common Questions Judgment at [5]-[10], it remains open to Ford to prosecute defences to the claims of group members under ss 54(4) and 271(6) of the Australian Consumer Law (being Sch 2 to the Competition and Consumer Act 2010 (Cth)). It may be that Ford succeeds in establishing defences to all of the group claims. Alternatively, it may be wholly unsuccessful in that endeavour. Probably the actual outcome will lie somewhere in between these two extremes. The point for present purposes is that this remains entirely unknown. 6 I have considered whether it is appropriate to make an order for costs of the proceeding to date referable only to Ms Capic's individual claim. I have concluded that this would not be appropriate. Although it is the case that some of the contest at the initial trial was limited to Ms Capic's individual circumstances and that this is separable from the contest on common issues, nonetheless I think it preferable that the question of costs as a whole be revisited at a time when the gravamen of the Applicant's case - that brought on behalf of approximately 185,000 group members - has been determined, and the parties' relative success or failure ascertained. 7 I will make an order accordingly. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Perram.