In this class action, the Applicant alleged that over 73,000 Ford cars fitted with a ‘DPS6’ transmission failed to comply with the guarantee of acceptable quality in s 54 of the Australian Consumer Law (ACL). The Applicant also alleged that Ford had engaged in misleading and deceptive conduct in connection with the promotion and sale of the cars, although this claim wholly failed.
The acceptable quality claim involved two sets of issues. First, the Applicant alleged a real risk that four individual components of the transmission would fail. This aspect of the case was largely successful, with the Court holding that (except in two particular respects) cars supplied with the original components had failed to comply with the statutory guarantee. Second, the Applicant alleged that ‘architectural’ features of the transmission created risks of failure. This aspect was only partially successful, with the Court finding (a) that the vehicles failed to comply with s 54 because they had a tendency to display a slight audible rattle and a slight shudder at slow speeds, and (b) that the Applicant had failed to prove that heat management within the transmission created any risk of failure.
The Applicant was awarded damages in her individual claim. However, the Court declined to award aggregate damages, holding that Ford had a potential defence under s 271(6) of the ACL where it had fixed a problem with a particular car within a reasonable time. Because that issue depended on the individual position of each group member and had not been litigated at trial, no award of aggregate damages was appropriate.
The case was one of the first major trials conducted virtually after the pandemic struck in 2020. The trial was run entirely by Zoom over six weeks, including cross examination and ‘hot tubs’ of expert witnesses located on three continents.
