Capic v Ford Motor Company of Australia Pty Ltd

(1) the correct construction of 'affected person' in s 2 of Schedule 2 to the Competition and Consumer Act 2010 (Cth) ('the ACL') including the 'successor in title' issue and the 'multiple guarantees' issue;

(2) whether crystallisation orders should be made under s 33Z(1)(e) or (g) of the Federal Court Act 1976 (Cth); and

(3) whether a defence under s 273 of the ACL was available in respect of some of the group members.

1. The hearing was conducted across two days on 30 and 31 October 2025. Although the lead applicant is Ms Capic, her claims have been resolved and the issues determined above (and all future issues) concern the position of the class and not Ms Capic. I will therefore refer to the moving party as 'the class' rather than the applicant which is substantively, if not formally, correct.

1. The class prevailed on all issues except the 'multiple guarantees' aspect of the first issue. In light of that outcome this is not a case where each party achieved a substantial measure of success such that each party should bear their own costs: Ezy-Fit Engineering Group Pty Limited v Microm Nominees Pty Limited (No 4) [2025] FCA 411 at [30] per Banks-Smith J.
2. In any event, the fact that a court has not accepted all of a successful party's arguments does not necessarily make it appropriate to apportion costs on an issue-by-issue basis: Australian Competition and Consumer Commission v Pacific National Pty Ltd (No 2) [2020] FCAFC 98 at [5] per Middleton, Perram and O'Bryan JJ. As the class has been substantially successful insufficient justification appears to warrant any departure from the ordinary position that costs follow the event. In that circumstance, I am unpersuaded that it is appropriate to apportion costs in the manner sought by Ford. Ford must pay the applicant's costs of the hearing.

1. Next the applicant seeks an order that her costs of the hearing be paid forthwith. The ordinary rule is that costs are not taxed or assessed until the determination of the proceeding: Federal Court Rules 2011 (Cth) r 40.13. The issue is whether the interests of justice sufficiently outweigh the policy considerations underpinning r 40.13 to justify a departure from that rule: Capic v Ford Motor Company of Australia Limited (Costs Forthwith) [2019] FCA 1065 at [17]; Axent Holdings Pty Ltd v Compusign Australia Pty Ltd (No 3) [2018] FCA 6 at [13].
2. The class submits that the litigation has been going for a decade and that none of the class members have seen any money despite their substantive victory on the central mechanical issue several years ago. I am sympathetic to this concern. However, the class action is funded and without more information about the funding arrangements I am unpersuaded that the making of any order that the costs be taxed forthwith would be likely to result in the payment of any funds to the class members.
3. I am not persuaded that in these circumstances the interests of justice require a departure from the ordinary rule. I will not order that the applicant's costs be paid forthwith.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Perram.