Williams v Toyota Motor Corporation Australia Limited (Initial Trial)

• Jurisdiction: Australia Federal only
• Judgment Date: 07 April 2022
• Neutral Citation: [2022] FCA 344
• Date: 07 April 2022
• Court: Federal Court

FEDERAL COURT OF AUSTRALIA

Williams v Toyota Motor Corporation Australia Limited (Initial Trial) [2022] FCA 344

File number:	NSD 1210 of 2019
Judgment of:	LEE J
Date of judgment:	7 April 2022
Catchwords:	CONSUMER LAW – representative proceeding pursuant to Pt IVA of Federal Court of Australia Act 1976 (Cth) (Act) – consumer class action – guarantee of acceptable quality pursuant to s 54 Australian Consumer Law (ACL) – where 264,170 vehicles supplied in Australia with defective diesel particulate filter (DPF) system – where defect causes range of consequences including emission of foul-smelling white smoke, the display of excessive DPF notifications, and the need to have the vehicle inspected, serviced and repaired – defect consequences arise when vehicle subject to normal highway driving conditions – where respondent attempted a range of countermeasures – first effective countermeasure introduced in 2020 – consideration of the proper construction of s 54 of the ACL – whether guarantee in s 54 applies to first and second hand purchasers – whether guarantee applies to those who have had the effective countermeasure – consideration of s 271(6) of the ACL – consideration of matters in ss 54(2) and (3) – whether vehicles fit for all the purposes for which goods of that kind are commonly supplied, acceptable in appearance and finish, free from defects, safe and durable – whether breach of s 54 can be determined on a common basis ; CONSUMER LAW – representative proceeding – whether representations concerning vehicles misleading or deceptive – consideration of ss 18, 29 and 33 of the ACL – future representations case – failure to disclose case – whether misleading and deceptive conduct claims determinable on a common basis ; CONSUMER LAW – individual claim of the second applicant for reduction in value loss and other reasonably foreseeable loss under s 272(1)(b), including excess GST, stamp duty, financing costs, lost income and excess fuel costs – individual claim of second applicant for misleading and deceptive conduct ; DAMAGES – reduction in value damages pursuant to s 272(1)(a) of the ACL – proper construction of s 272(1)(a) – conceptualising reduction in value – determining the proper meaning of reduction in value – where market data incomplete – whether appropriate to have regard to concepts such as repair cost and willingness to pay when determining reduction in value – danger in overcomplicating statutory concepts and shoehorning s 272(1)(a) into a definitional corner – point in time at which reduction in value damages is to be assessed – information following date of acquisition relevant to the extent it bares upon value at the time of acquisition – identifying, calculating and applying the reduction in value – valuation an art not an exact science – consideration of expert evidence – reduction in value of 17.5 per cent appropriate – mechanics of calculating “average retail price” – income tax consequences for group members of a damages award ; DAMAGES – other reasonably foreseeable loss or damage under s 272(1)(b) of the ACL – excess GST – consideration of the relevant principles – whether reduction in value better characterised as an “overpayment” or “under delivery” – impact of characterisation on GST damages – consideration of the GST consequences for group members of an award of damages under s 272(1)(b) ; DAMAGES – representative proceedings – aggregate damages – where claim advanced on alternative bases under s 33Z(1)(e) and 33Z(1)(f) of the Act – whether reduction in value can be awarded on an aggregate basis – difficulty associated with secondary market – overriding principles applicable to the award of compensatory damages – whether applicants’ approach to damages under s 33Z(1)(f) cuts across the statutory purpose of s 272(1)(a) – s 33Z(1)(e) appropriate source of power ; DAMAGES – individual claim of second applicant – whether second applicant suffered a reduction in value – whether second applicant entitled to damages for other reasonably foreseeable loss under s 272(1)(b) – whether second applicant entitled to damages available under s 236 for misleading and deceptive conduct – whether causal connexion between misleading and deceptive conduct and consequential loss – no double recovery ; PRACTICE AND PROCEDURE – where referee appointed to inquire into and report on questions relating to the defect – where parties tendered a statement of agreed facts – where reports of referee adopted by the court without objection – where respondent contests aspects of the referee reports and agreed facts at trial – parties bound by conclusions of referee when adopted
Legislation:	A New Tax System (Goods and Services Tax) Act 1999 (Cth) ss 9-15, 19-10, 19-70, 19-80, 29-20, 134-1, 195-1 Australian Securities and Investments Commission Act 2001 (Cth) Competition and Consumer Act 2010 (Cth) s 82, Sch 2 ss 2, 4, 7, 18, 29, 33, 54, 55, 59, 236, 259, 267, 271, 272 Evidence Act 1995 (Cth) ss 136, 191 Federal Court of Australia Act 1976 (Cth) ss 33D, 33Z Federal Court Rules 2011 (Cth) r 28.67 Income Tax Assessment Act 1997 (Cth) ss 20-20, 20-25, 20-30 Trade Practices Act 1974 (Cth) s 74D, 82 (repealed) Fair Trading Act 1987 (NSW) s 42 (repealed) Sale of Goods Act 1979 (UK) s 14
Cases cited:	Adcock Private Equity v Porges [2018] NSWSC 1363 Air Express Ltd v Ansett Transport Industries (Operations) Pty Ltd (1979) 146 CLR 249 Atlas Tiles Ltd v Briers (1978) 144 CLR 202 Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Ltd [2014] FCA 634; (2014) 317 ALR 73 Australian Competition and Consumer Commission v Google LLC [2021] FCA 367; (2021) 391 ALR 346 Australian Competition and Consumer Commission v Jayco Corporation Pty Ltd [2020] FCA 1672 Australian Competition and Consumer Commission v TPG Internet Pty Ltd [2020] FCAFC 130; (2020) 278 FCR 450 Australian Securities and Investments Commission v GetSwift [2021] FCA 1384 Blatch v Archer (1774) 1 Cowp 63 Bodum v DKSH Australia Pty Ltd [2011] FCAFC 98; (2011) 280 ALR 639 Boral Besser Masonry Limited v Australian Competition and Consumer Commission [2003] HCA 5; (2004) 215 CLR 374 Bramhill v Edwards [2004] 2 Lloyd’s Law Reports 653 British Transport Commission v Gourley [1956] AC 185 Butcher v Lachlan Elder Realty Pty Ltd [2004] HCA 60; (2004) 218 CLR 592 BVT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 222 Campbell v Backoffice Investments Pty Ltd [2009] HCA 25; (2009) 238 CLR 304 Campomar...