Young v Tesla Motors Australia Pty Ltd t/as Tesla [2025] NSWCATCD 178;

1. The applicant submitted that that undertaking "eliminates any possibility of vexatiousness".

1. I do not accept the applicant's submission that the Federal Court proceedings do not raise the same issues (or some of the same issues) as these proceedings. The Amended Statement of Claim in the Federal Court proceedings pleads, at par 38, that the respondent made representations including:

(a) a fully functioning "Autosteer on City Streets" function will be available within a reasonable time of purchase;

(b) Affected Vehicles were capable of achieving full self-driving capability within the vehicle's lifespan, or alternatively within a reasonable time;

(c) Affected Vehicles were capable of achieving autonomous driving without active driver supervision within the vehicle's lifespan, or alternatively within a reasonable time;

(d) Affected Vehicles were equipped with the hardware needed for full self-driving capability at a safety level substantially greater than that of a human driver;

(e) Affected Vehicles with FSD (described further below) were capable of achieving "full self-driving in almost all circumstances" including being able to "conduct short and long distance trips with no action required by the person in the driver's seat";

(f) "Tesla cars come standard with advanced hardware capable of providing Autopilot features, and full self-driving capabilities through software updates designed to improve functionality over time";

(g) Affected Vehicles "have the hardware needed in the future for full self-driving in almost all circumstances";

(h) "As these self-driving capabilities are introduced, your car will be continuously upgraded through over-the-air software updates";

1. These representations were referred to as the "Timing and Hardware Representations".
2. The statement of claim further pleads at 44 - 45 that:

"44 At all material times during the Relevant Period, Tesla owners had the option to purchase upgraded Autopilot products described as "Enhanced Autopilot" and "Full Self Driving Capability" (FSD) (together, Upgraded Autopilot Products). ...

45 During the Relevant Period, the Upgraded Autopilot Products were represented by Tesla Australia and/or Tesla US as offering the potential for a Tesla vehicle to achieve autonomous driving without active driver supervision, or higher levels of autonomous driving."

1. The statement of claim alleges that those representations were misleading or deceptive or likely to mislead or deceive, that group members relied upon the representations in deciding to acquire a Tesla vehicle, and seeks compensation.
2. In my view, the applicant's case in the Tribunal could not be determined without consideration of what representations had been made by the respondent in relation to the availability of the full self-drive feature. That is clearly an issue which also arises in the Federal Court proceedings.
3. Nor am I persuaded that the undertaking proffered by the applicant would avoid the possibility of the applicant's proceedings in the Tribunal being found to be vexatious, if they would otherwise be so found.
4. However, as is clear from the decision in Oliver v Commonwealth Bank (No 2) relied upon by the respondent, it is only after the expiry of the opt out period for a class action in the Federal Court that maintenance of other proceedings by a party who has not opted out would constitute an abuse of process.
5. The passage from that decision relied upon by the respondent must be read in context. At [1] - [3] Perram J held:

"[1] It is prima facie vexatious and oppressive, in the strict sense of those terms, to commence a second or subsequent action in the courts of this country if an action is already pending with respect to the matter in issue": Henry v Henry [1996] HCA 51; (1996) 185 CLR 571 at 591 per Dawson, Gaudron, McHugh and Gummow JJ. Consequently, it lies upon the party bringing the second action to show that is not so: Moore v Inglis (1976) 9 ALR 509 at 514 per Mason J, citing the dissenting judgment of Lord Esher MR in The Christiansborg (1885) 10 PD 141 at 148; Henry v Henry at 591 (footnote 66).

[2] Representative proceedings give rise to complexities in this area because of the possibility that proceedings by the representatives, on the one hand, and separate proceedings brought by those represented, on the other, may infringe the above principle. In this court representative proceedings operate on an "opt-out" basis; that is, persons remain in the class of those represented unless they take the affirmative step of indicating they do not wish to be in that class: Federal Court of Australia Act 1976 (Cth), s 33J(2). Even though that is the case, however, class members are not parties to the proceeding unless they choose to be one of the nominated representative parties: s 33C(1); King v AG Australia Holdings Ltd (formerly GIO Australia Holdings Ltd) [2002] FCA 1560 at [9] per Moore J; Courtney v Medtel Pty Ltd [2002] FCA 957; (2002) 122 FCR 168 at 179 [35]-[36] per Sackville J.

[3] Consequently, the view in this court is that the existence of proceedings by a class member (not being a representative party) at the same time as a representative proceeding in which that class member is represented is not necessarily an immediate abuse of process. In Johnson Tiles Pty Ltd v Esso Australia Ltd [1999] FCA 56 per Merkel J, albeit in the context of competing representative proceedings, thought that at least at an early stage the Court should determine which of the proceedings should be permitted and it was not necessarily the case that the proceeding which was filed first should be the proceeding which would go forward: see [14]-[15]. On the other hand, Lehane J thought that, after a party had failed to opt out of a representative proceeding, it was likely that the court would prevent further pursuit of presently subsisting and overlapping ordinary proceedings: Bright v Femcare Ltd [2000] FCA 742; (2000) 175 ALR 50 at 83 [101]; [2000] FCA 742 at [101]. Considerations of commonsense and these two decisions suggest, therefore, that it is prima facie vexatious and oppressive for a person who has not opted out of a representative proceeding (when the opt-out time has passed) to maintain ordinary proceedings against the same respondent dealing with substantially the same subject matter. I so conclude."

1. That his Honour did not consider separate proceedings to be an abuse of process before the expiry of the opt out period is clear from the decision at [24]:

"[24] The proceedings were not an abuse of process until 23 March 2012 when Dr Oliver and Dr Irving failed to opt out of the Sherwood proceedings and I do not consider their position in pursuing these proceedings prior to that time was unreasonable. However, on that date they have, in effect, elected to pursue the representative proceedings and to abandon these ones. In a sense, their submission that the current actions should be preserved so that ultimately they might facilitate the ultimate resolution of the individual claims in the Sherwood proceedings showed the subordinate role now envisaged for them."

1. Other decisions referred to by the respondent concern circumstances in which a party sought to maintain two sets of proceedings in their own right. Those decisions have no relevance to the present circumstances where the applicant has yet to elect whether to participate in the Federal Court proceedings.
2. Accordingly, I do not find that the maintenance of these proceedings is an abuse of process at this time. That position may change, if these proceedings have not been concluded by the time the applicant is required to elect whether to opt out of the Federal Court proceedings, and the applicant does not opt out. In my view, that is not a reason to strike out the applicant's claim as an abuse of process at this time.
3. Nor do I find that the proceedings are misconceived. The respondent's submissions on that issue add nothing to the submissions concerning abuse of process.
4. The meaning of "misconceived" in the Administrative Decisions Tribunal Act 1977 (in the equivalent provision to s 55(1)(b) of the NCAT Act) was considered in Alchin v Rail Corporation NSW [2012] NSWADT 142 at [25] to [26]:

"25 The expressions used in s 92(1)(a)(i) of the ADA, namely "misconceived" and "lacking in substance" are found not only in the ADA but also in s 73(5)(g) of the ADT Act and similar legislation in other states. With respect to a similar provision found in the Equal Opportunity Act 1984 (Vic), Ormiston JA in State Electricity Commission of Victoria v Rabel [1998] 1 VR 102 at [14] said:

"misconceived" and "lacking in substance" have not, so far as I am aware, been used in this context before though each expression is commonly used by lawyers, the one connoting a misunderstanding of legal principle and the other connoting an untenable proposition of law or fact. If one may discern, in these provisions, an attempt to express the powers of tribunals in non-technical language, then "misconceived" would represent a claim which did "not disclose a cause of action" ..., whereas "lacking in substance" might be seen to represent a claim where the defendant could obtain summary judgment ...

26 This approach of construing "misconceived" as including a misunderstanding of legal principle and "lacking in substance" as encompassing an untenable proposition of fact or law has been applied by the Tribunal in many decisions including, for example, Keene v Director-General, Department of Justice and Attorney-General [2011] NSWADT 59 at [14], McDonald v Central Coast Community Legal Centre [2008] NSWADT 96 at [22] and Stanborough v Woolworths Ltd [2005] NSWADT 203 at [50]."

1. That passage was applied in relation to s 55(1)(b) of the NCAT Act in Long v Metromix Pty Ltd [2019] NSWCATAP 198 at [77].
2. It cannot be said that the application brought in the Tribunal is founded upon any misunderstanding of legal principle or untenable proposition of law or fact.
3. Neither party referred to cl 5 of Sch 4 to the NCAT Act. That clause provides:

5 Relationship between Tribunal and courts and other bodies in connection with Division functions

(1) Meaning of "court" For the purposes of this clause, court means any court, tribunal, board or other body or person (other than one referred to in subclause (2)) that -

(a) is empowered under any other Act, or

(b) by consent of, or agreement between, 2 or more persons has authority,

to decide or resolve any issue that is in dispute, whether through arbitration or conciliation or any other means.

(2) However, court does not, for the purposes of this clause, include -

(a) a court, tribunal, board or other body or person that, in relation to a particular matter, is empowered by law to impose a penalty, admonition or other sanction for a contravention of a law or for misconduct or breach of discipline proved to have been committed in connection with that matter but is not empowered to award or order compensation or damages in respect of that matter, or

(b) (Repealed)

(c) the Ombudsman, or

(d) any person exercising the functions of an ombudsman under any law of the Commonwealth, or

(e) any person authorised, under a law of the State or of the Commonwealth or of another State or a Territory, to make decisions or orders, or give directions, that are binding only on one party to a dispute.

(3) Effect of application to Tribunal or court If, at the time when an application was made to the Tribunal for the exercise of a Division function, no issue arising under the application was the subject of a dispute in proceedings pending before a court, a court has no jurisdiction to hear or determine such an issue.

(4) Subclause (3) ceases to apply to the extent to which the application concerned is dismissed for want of jurisdiction or withdrawn.

(5) Subclause (3) does not prevent a court from hearing and determining any proceedings in which it is claimed that any order, determination or ruling of the Tribunal in exercise or purported exercise of a Division function is invalid for want of jurisdiction or from making any order as a consequence of that finding.

(6) For the purposes of subclause (3), an issue arises under an application made to the Tribunal for the exercise of a Division function only if the existence of the issue is shown in the applicant's claim or is recorded in the record made by the Tribunal in accordance with this Act.

(7) Effect of pending court proceedings on Tribunal If, at the time when an application is made to the Tribunal for the exercise of a Division function, an issue arising under the application was the subject of a dispute in proceedings pending before a court, the Tribunal, on becoming aware of those proceedings, ceases to have jurisdiction to hear or determine the issue.

(8) Subclause (7) ceases to apply to the extent to which the proceedings concerned are dismissed or quashed by the court, or by another court, for want of jurisdiction or without deciding the issue on its merits, or withdrawn.

(9) Evidence from court proceedings In proceedings on an application to the Tribunal for the exercise of a Division function, a finding or decision made by a court, tribunal, board, body or person referred to in subclause (2) is admissible as evidence of the finding or decision.

(10) Clause prevails over other law This clause has effect despite Part 3 of this Act or any other Act or law to the contrary.

1. I do not consider that provision has any significance for the present application. The presumption, reinforced by s 12(1)(b) of the Interpretation Act 1987 (NSW) is that "court" as used in that clause refers to NSW courts and not to courts of other jurisdictions, including the Federal Court. "It is a long recognised rule of statutory construction that a reference to courts, matters, things and persons in the legislation of a State is a reference to courts, matters, things and persons in that State." Solomons v District Court of New South Wales (2002) 211 CLR 119; [2002] HCA 47 per McHugh J at [37], citing Seaegg v The King [1932] HCA 47; (1932) 48 CLR 251 at 255 per Rich, Dixon, Evatt and McTiernan JJ.
2. Moreover, the definition of "court" refers to courts etc "empowered under any other Act". "Act" in that context must mean Act of NSW.
3. Clearly cl 5(3) does not apply to the Federal Court. The NCAT Act could not validly deny jurisdiction to the Federal Court. That also suggests that "court" in cl 5(7) does not include the Federal Court.
4. Although, for the foregoing reasons, it would not be appropriate to dismiss the application, the Tribunal retains the power to grant a stay of the proceedings for good cause. However, I am not persuaded that there is good cause in the circumstances of this case.
5. The respondent has provided no evidence concerning the anticipated time frame within which the opt out period for the Federal Court proceedings might commence or conclude. Nor is there any evidence before the Tribunal concerning when the Federal Court proceedings might be brought on for hearing.
6. The Tribunal's guiding principle, as set out in s 36 of the NCAT Act, is "to facilitate the just, quick and cheap resolution of the real issues in the proceedings". The Tribunal would usually expect to finalise an application such as that brought by the applicant within twelve months, the Tribunal's performance standards suggest a substantially shorter period. To stay the proceedings by reason of the existence of other proceedings from which the applicant may ultimately elect to opt out would not be consistent with the guiding principle.
7. Clearly, if the applicant succeeds in the proceedings in the Tribunal, principles of double recovery would limit his capacity to benefit from the Federal Court proceedings. At the same time, it is possible that a decision by the Tribunal against the applicant could be relied upon by the respondent as foreclosing the applicant from maintaining any claim in the Federal Court proceedings. Those are matters for the applicant to consider, but they do not warrant the Tribunal staying the proceedings.
8. As the applications for dismissal and for a stay have been dismissed, it is appropriate to make directions for the filing of evidence. The proceedings will be listed for further directions in 2026.

(1) Pursuant to s 50 of the Civil and Administrative Tribunal Act 2013 (NSW) a hearing of the Applications for Miscellaneous Matters filed by the respondent on 10 November 2025 and 25 November 2025 is dispensed with.

(2) The Application for Miscellaneous Matters filed by the respondent on 10 November 2025 is dismissed.

(3) The Application for Miscellaneous Matters filed by the respondent on 25 November 2025 is dismissed.

(4) The applicant must file in the Tribunal and serve upon the respondent all evidence on which he seeks to rely at the hearing of the application by 30 January 2026.

(5) The respondent must file in the Tribunal and serve upon the applicant all evidence on which it seeks to rely at the hearing of the application by 27 February 2026.

(6) The applicant may file in the Tribunal and serve upon the respondent evidence in reply by 13 March 2026.

(7) The proceedings are adjourned for directions to a date to be fixed by the Registry.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.