Capic v Ford Motor Company (No 2) [2016] FCA 1178

Capic v Ford Motor Company (No 2) [2016] FCA 1178

Security for costs was refused because, although Ford faced a real risk of unrecovered costs and security can in principle be ordered in representative proceedings, the evidence did not show well-resourced group members standing behind Ms Capic, the claims were modest consumer claims, the proceeding was unfunded, obtaining contributions from group members would be administratively complex, and an order for security would for all intents and purposes stifle the action. Leave to amend the class definition was appropriate because the diesel vehicle owners had been included by error, both sides accepted there was no claim concerning diesel vehicles, and the further affidavit evidence showed...

Jurisdiction
Australia
Judgment Date
29 September 2016
Procedural Posture
Representative Proceeding / Interlocutory Applications for Security for Costs and Amendment of Group Definition
Outcome
Ford's interlocutory application for security for costs was dismissed with costs, and the Court indicated that leave to amend the class definition to remove diesel vehicle owners was appropriate, with parties to bring in orders on the amendment issues.
Legal Topics
['representative Proceedings' 'security for Costs' 'removal of Persons From Group' 'amendment of Group Definition']
['practice and Procedure'] ['representative Proceedings' 'security for Costs' 'removal of Persons From Group' 'amendment of Group Definition']

Case Brief

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Procedural Posture

Representative Proceeding / Interlocutory Applications for Security for Costs and Amendment of Group Definition

Legal Issues

  1. 1 ['Whether the respondent should obtain security for costs against the lead applicant in a representative proceeding where the lead applicant could not provide the security herself and group members may benefit from the proceeding.' 'Whether ordering security for costs would for all intents and purposes stifle the representative proceeding.' 'Whether the lead applicant should have leave to amend the statement of claim to reduce the class by removing diesel vehicle owners.']

Ratio Decidendi

Security for costs was refused because, although Ford faced a real risk of unrecovered costs and security can in principle be ordered in representative proceedings, the evidence did not show well-resourced group members standing behind Ms Capic, the claims were modest consumer claims, the proceeding was unfunded, obtaining contributions from group members would be administratively complex, and an order for security would for all intents and purposes stifle the action. Leave to amend the class definition was appropriate because the diesel vehicle owners had been included by error, both sides accepted there was no claim concerning diesel vehicles, and the further affidavit evidence showed...

Court Disposition

Ford's interlocutory application for security for costs was dismissed with costs, and the Court indicated that leave to amend the class definition to remove diesel vehicle owners was appropriate, with parties to bring in orders on the amendment issues.

Orders

  • ["The respondent's interlocutory application be dismissed with costs." 'The parties bring in orders in relation to the amendment issues within 7 days.']