Competition and Consumer Law Update - Fair and Square: CCL Round Up (March 2026)

The latest in the saga of judgments in this class action against Ford, concerning breaches of the guarantee of acceptable quality in relation to vehicle defects under s 54 of the Australian Consumer Law (ACL), was handed down on 2 February 2026.

See the Fair and Square: CCL Roundup of 31 March 2025 on the earlier High Court decisions in:

• Williams v Toyota Motor Corporation Australia Ltd [2024] HCA 38;
• Capic v Ford Motor Company of Australia Pty Ltd [2024] HCA 39.

In this latest decision ([2026] FCA 38), Perram J dealt with three issues:

• FIRST ISSUE: application of guarantee of acceptable quality to subsequent owners
  • Limb (c) of the definition of an affected person in ACL s 2, “a person who derives title to the goods through or under the consumer”, applies to all successors in title, such that a “third owner” of a vehicle could bring an action under s 54 of the ACL by reference to the purchase price paid by the original owner: [22]-[69], spec. [67] and [69].
  • Whilst the acquisition of the same vehicle on multiple occasions from persons who supply it in trade or commerce (such as dealers) may give rise to multiple s 54 guarantees, each guarantee remains associated with the consumer whose acquisition of the vehicle generated it in the first place (subsequent consumers cannot claim under multiple guarantees): [77]-[78].
  • If the chain of title for a vehicle includes, as one of its links, a purchaser who cannot, as a matter of law, be an affected person (such as a second-hand dealer who has acquired the vehicle for the purpose of re-supply, per ACL s 2(b)), the claim for reduction in value damages ceases to exist on that acquisition. A fresh s 54 guarantee will apply by reference to the purchase price paid by the subsequent (and not original) purchaser: [81]-[82], [88].
• SECOND ISSUE: crystallisation orders under s 33Z(1)(g) under the Federal Court of Australia Act 1976 (Cth)
  • Williams established that a class member may maintain a claim for reduction in value damages under s 272(1)(a) of the ACL only if they own their vehicle.
  • Justice Perram made an order to permit class members to sell their vehicles but maintain their right to claim reduction in value damages, despite not owning the vehicle: [93]-[94], [102]-[106]. When vehicles are subsequently sold, the purchasers will not receive, with their title to each vehicle, the right to claim reduction in value damages under the relevant guarantee: [105].
• THIRD ISSUE: limitation periods
  • For the limitation period under s 273 of the ACL, the time at which the “affected person first became aware, or ought reasonably to have become aware, that the guarantee to which the action relates has not been complied with” required knowledge of an established defect: [120].
  • In this case, the defects consisted of the mechanical circumstances which gave rise to the various risks that symptoms might develop, and not the symptoms themselves: [121]. Consequently, it was knowledge of the risks that was required and not the symptoms: [138]. As Perram J put it, “[k]nowing that a car is a lemon does not tell one that its citrus qualities derive” from a particular fact: [138].

Don’t take for granted that declaratory relief will be granted: Australian Competition and Consumer Commission v Telstra Limited (No 2) [2025] FCA 1220

In a previous decision (Australian Competition and Consumer Commission v Telstra Limited [2025] FCA 93 (the Liability Judgement)), Snaden J found that Telstra had contravened ss 18, 29(1)(b) and 29(1)(g) of the ACL by making false or misleading representations about the upload speed of residential broadband internet services supplied to Belong customers.

On 3 October 2025, Snaden J handed down a judgment with respect to relief. The parties had jointly proposed declarations and orders that Telstra pay pecuniary penalties totalling $18 million and the ACCC be awarded $300,000 in costs. His Honour declined to grant declaratory relief but made the orders regarding pecuniary penalties and costs proposed by the parties.

Justice Snaden found that, in the circumstances of this case, binding declarations of right would be “totally pointless”: [9]-[10]. His Honour observed that it is not an appropriate deployment of declaratory relief to record, in the form of declarations, findings that have already been made as to the respondent’s liability under the ACL, but acknowledged the Federal Court regularly does this (particularly in matters brought by statutory regulators): [6]-[8].

His Honour concluded that there was no reason to think that, in this case, declaratory relief would visit any practical consequence for anybody, nor achieve any identifiable utility, because (at [9]):

• the proposed declarations of right said nothing about the court’s disapproval of the Telstra’s unlawful conduct that wouldn’t be said more effectively by the imposition of a significant pecuniary penalty;
• there was no evidence (subject to minor exception) about the concerns of customers or any real explanation as to how the proposed declarations might vindicate any such concerns;
• the work of the ACCC would not be assisted by recording, in declaratory form, the factual and legal conclusions already set out in the reasons accompanying the Liability Judgment; and
• there was no evidential basis to conclude that anybody might be more dissuaded from emulating the impugned conduct by the making of declarations than they would otherwise be due to the imposition of a significant pecuniary penalty.

Fair and Square: CCL Round Up (March 2026)