1 August 2019
BANNISTER LAW CLASS ACTIONS FILES CLASS ACTION AGAINST TOYOTA AUSTRALIA
Bannister Law Class Actions, working with Gilbert + Tobin, has filed a class action in the Federal Court of Australia against Toyota Motor Corporation Australia Limited (Toyota Australia).
The class action claims that:
- certain models of Toyota motor vehicle in the Hilux, Prado and Fortuner ranges fitted with a diesel particulate filter (DPF) are defective;
- these vehicles fail to comply with the statutory guarantee as to acceptable quality provided under the Australian Consumer Law; and
- Toyota Australia has engaged in conduct that was misleading or deceptive and, in the circumstances, unconscionable.
The proceedings are brought by Kenneth John Williams (the Applicant) on his behalf and on behalf of other people (Group Members) who, between 1 October 2015 and 26 July 2019, in Australia, acquired one or more models of Toyota motor vehicle in the Hilux, Fortuner and Prado ranges fitted with a diesel particulate filter (Affected Vehicles).
The DPF fitted in the Affected Vehicles is designed to remove diesel particulate matter from the exhaust gas of the diesel engine before that gas is released into the atmosphere. For a DPF to function effectively, the particulate matter captured by and stored in the DPF must periodically be burned off in a process called “regeneration”, where the exhaust temperature increases to the level required for the particulate matter to combust. When regeneration does not occur, or is ineffective, the DPF becomes blocked with particulate matter.
The Affected Vehicles have an in-built regeneration system designed to initiate regenerations periodically. This regeneration system fails, or has a propensity to fail, to prevent the DPF from becoming partially or completely blocked. This, in turn, causes the Affected Vehicles to experience a myriad of other issues, including decreased power, increased fuel consumption and the emission of excessive white smoke and diesel particulate matter into the atmosphere. The Affected Vehicles experiencing these issues require time consuming and costly repairs, including repeated vehicle servicing and repeated replacement of the DPF in its entirety.
The proceedings claim that by reason of these matters, the Affected Vehicles fail to comply with the statutory guarantee as to acceptable quality.
Further, since October 2015, Toyota Australia has represented to the Applicant, Group Members and to the public that the Affected Vehicles were (amongst other things) durable, reliable, of good quality, and provided a driving and passenger experience that was comfortable and convenient, and that the Affected Vehicles were equipped with a DPF System that was durable, reliable and of good quality.
The claim alleges that those representations were misleading because the Affected Vehicles could not, and did not, deliver the advertised combination of durability, reliability, quality, comfort and convenience, and the DPF System in the Affected Vehicles was not durable, reliable and of good quality.
It is said that Toyota Australia has known of issues affecting the DPF System in the Affected Vehicles since February 2016 and, in the circumstances, Toyota Australia’s misleading conduct was also unconscionable.
The proceedings claim that the Applicant and each Group Member suffered loss and damage by reason of the fact that the Affected Vehicles are not of an acceptable quality, and also because of Toyota Australia’s misleading and unconscionable conduct. This loss and damage includes, but is not limited to, a reduction in value of the Affected Vehicles, costs of excessive fuel consumption, costs connected with the inspection, servicing and repair of the Affected Vehicles, as well as income foregone on days whilst undertaking these steps.
What is a class action?
A class action is a legal proceeding where seven or more people have claims against the same individual or corporation in respect of, or arising out of similar circumstances, such that their claims give rise to a substantial common issue of law or fact. Where these criteria are met (as in the present case), class action proceedings can be commenced by one or more of those people on behalf of some or all of them.
The class action process is intended to save time and expense and avoids the need for the courts to determine common issues of fact or law more than once. It enables disputes and claims involving large numbers of people to be resolved via a single case.
Who is conducting the Class Action?
Bannister Law Class Actions are the solicitors on the record in the Proceedings and are working with Gilbert + Tobin and a team of barristers, consisting of John Sheahan QC, Matthew Darke SC, Robert White and Patrick Meagher.
What vehicles are affected?
This class action involves any model of Toyota motor vehicle in the Hilux, Prado and Fortuner ranges fitted with a diesel particulate filter which were acquired between 1 October 2015 and 26 July 2019, in Australia.
An inclusive but non-exhaustive list of Affected Vehicles can be found here.
Am I a Group Member?
You are a Group Member and entitled to participate in the class action if:
- you acquired (including by way of purchase, exchange or taking on lease, or on hire-purchase) one or more models of Toyota motor vehicle in the Hilux, Fortuner and Prado ranges fitted with a diesel particulate filter;
- you acquired the vehicle between 1 October 2015 and 26 July 2019;
- you did not acquire the vehicle in an auction;
- you did not acquire the vehicle for the purpose of re-supply; and
- you acquired the vehicle from a Toyota dealership or other retailer, including used car dealers, or from any person who directly acquired the vehicle from a Toyota dealership or retailer.
Does it matter if my vehicle was/is financed?
Financing of the vehicle does not affect your ability to be a part of the class action, provided that you are entitled to be a Group Member.
Do Group Members need to register to be a part of the Class Action?
No. Anyone who is entitled to be a Group Member is automatically a Group Member in the class action, whether or not they register. Group Members will be bound by the outcome of the class action unless steps are taken by them to opt-out.
Registering your interest allows you to record your details to benefit from regular updates in relation to the progress of the matter. Registering does not oblige you to participate.
What will it cost Group Members to be a part of the Class Action?
Being a Group Member in the class action will not expose you to any out of pocket costs, even if the claim is unsuccessful. Unless and until there is a successful outcome, all costs will be borne either by Bannister Law Class Actions or, an experienced, UK-based litigation funder that has agreed to provide finance to support the proceedings.
In the event of a successful outcome, any costs and/or funding commission payable in connection with the proceedings may be deducted from any compensation that Group Members are entitled to receive. Courts commonly make orders requiring Group Members who recover compensation through a class action to make a contribution from that compensation to the legal costs and/or funding costs involved in running the proceeding. If the Court makes orders requiring Group Members to make a contribution from any compensation that they receive to the legal or funding costs of the proceeding, this will not exceed the amount of compensation received, and no Group Member will be asked to pay any shortfall in the legal and funding costs, with the consequence that no Group Member will be left out of pocket.
What sort of compensation might I receive if the claim is successful?
The claim is seeking compensation for the loss and damage suffered by the Applicant and Group Members. This loss and damage includes the diminution in value of the Affected Vehicles and the costs of excess fuel consumption resulting from the defects, costs incurred in having the Affected Vehicles inspected, serviced and repaired, as well as income foregone as a result of taking these steps.
Any potential compensation awarded to Group Members will depend on the Court’s findings in relation to the Applicant’s claim and the common issues, or alternatively the terms of any settlement which may be reached with Toyota Australia. It is not possible to be more specific at this stage.
How long will the action take?
It is not uncommon for class actions of this type to continue for two to three years from commencement, to approval of a settlement by the Court, or judgment. In some cases, actions can be resolved sooner or continue well beyond this timeframe.
How to register
Registration is an expression of interest, which does not oblige you to participate. Whilst it is not necessary to register to be a part of the class action, registration provides a means to keep updated with the progress of the litigation.