The Toyota class action claims compensation (that is, money) for what are claimed to be defects in Toyota Hilux, Fortuner and Prado vehicles with a 1GD-FTV or 2GD-FTV diesel engine. It is claimed that these defects cause problems with the vehicles, including the emission of white smoke from the exhaust, blockage of the diesel particulate filter (DPF), increased fuel consumption, and increased wear and tear on the engine.

The class action claims that:

• certain models of Toyota motor vehicle in the Hilux, Prado and Fortuner ranges fitted with a 1GD-FTV engine or 2GD-FTV engine and 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 case is brought by Kenneth John Williams on his own behalf and on behalf of other persons who also own or have owned these Toyota vehicles (known as “group members”). The firm of solicitors running the case for Mr Williams and the group members is Bannister Law Class Actions, supported by Gilbert + Tobin Lawyers.

This class action involves any model of Toyota motor vehicle in the Hilux, Prado and Fortuner ranges fitted with a 1GD-FTV engine or 2GD-FTV engine and a diesel particulate filter which were acquired between 1 October 2015 and 23 April 2020, in Australia.

An inclusive but non-exhaustive list of Affected Vehicles can be found here.

If you can’t find your vehicle on this list or if you are unsure whether your vehicle is one of the Affected Vehicles in the class action, you can request a call back from a Bannister Law Class Actions representative using the contact form here.

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 and Patrick Meagher.

Whether or not your warranty has expired, you can still be part of this class action.

The Toyota class action includes claims for compensation (that is, money) for 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. Group members may be asked to submit their documentation relating to their individual claims to be considered at some point in the future.

You may or may not be covered for services from Toyota related to your vehicle’s DPF issues after your warranty has expired. You may need to make enquiries with your Toyota dealer to understand what services will be covered.

No. Financing of the vehicle does not affect your ability to be a part of the class action, provided that you meet the group member criteria.

If the class action is successful, you may be entitled to an account of money to reflect your costs of financing your vehicle.

If you have received a refund or are about to receive a refund or replacement, this does not preclude you from participating as a group member in the class action. If you meet the group member criteria, then you are automatically part of the class action and will be bound by the outcome unless you take steps to “opt out”. Receipt of a refund may however affect the amount, if any, you may be entitled to if the class action is successful. Any refund which you may accept from Toyota may be accompanied by formal terms and conditions which may affect your rights in the class action.

You may wish to obtain independent legal advice from your family solicitor or a solicitor you choose on how a refund or replacement vehicle may affect your rights to compensation in the class action.

Ultimately whether to accept the refund or replacement vehicle is a decision for you.

Even if you have sold your vehicle you are able to be a part of the class action, provided that you meet the group member criteria.

It doesn’t cost you anything to be a part of the Toyota class action.

Group members are not, and will not be, responsible for any “out of pocket” legal costs by remaining as group members in this class action. At present, the costs of running the class action are being paid by a company called Balance Legal Capital (Balance). This means that Balance has agreed to pay the costs of bringing this class action against Toyota in return for repayment of those costs plus a funding commission, should the class action be successful (that is, if money compensation is recovered from Toyota).

If the class action is unsuccessful (that is, if no money compensation is recovered), group members will have no responsibility and will not have to pay anything.

If the class action is successful (that is, if money compensation is recovered), the Court may be asked to distribute the legal and funding expenses of the litigation among all persons who have benefitted from the class action. The effect of any such order of the Court, if made, would be that all group members who benefit from the class action (i.e., are due money compensation from it) will pay a share of the legal and funding expenses of the litigation (including a reasonable litigation funding commission). This means that even those who are group members but do not sign up to a funding agreement might have to contribute to these expenses out of their share of the compensation to be received. A group member’s share of these expenses will be taken out of (and will not exceed) the money compensation to be paid to that group member by Toyota before that compensation is paid out.

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 alleged 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 money 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.

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.

A further case management hearing in these Proceedings took place on 7 May 2021.

At the hearing, the Federal Court made procedural orders setting out the various steps the parties must take between now and the trial due to commence on 29 November 2021.

We summarise the key steps below.

Supplementary Reference

In our last update (found here), we told you that additional technical issues remaining in dispute had been referred to the independent referee who conducted the first reference in these Proceedings.

The independent referee is currently conducting this further reference (also known as a “supplementary reference”). He has indicated that he expects to complete his supplementary reference and provide a report by 30 July 2021.

The Proceedings have been listed for a hearing on 27 August 2021 of any application in respect of the adoption of this report.

Evidence

The Applicants must prepare and exchange their evidence, both lay (i.e., non-expert) and expert, by 16 July 2021. Toyota must do the same by 1 October 2021. The Applicants may then serve any evidence in reply to Toyota’s evidence by 22 October 2021.

Common Questions

The Court has ordered a process by which questions of fact and/or law which are common to the claims of group members (also known as “common questions”) are to be decided prior to the trial.

The parties must confer and attempt to agree on the common questions. The Proceedings have been listed for a hearing on 8 October 2021 to decide the common questions in the event the parties are unable to reach agreement.

Mediation

At this stage, the Proceedings will be referred to mediation by 17 September 2021. The mediation will be conducted by either Ray Finkelstein AO, QC or Peter Jacobson QC.

Trial

The Proceedings remain listed for a four-week trial commencing on 29 November 2021. The trial will be conducted electronically.

Further Case Management Hearing

The next case management hearing is set down for 17 September 2021.

Further information about the case will be provided as the case progresses.

No. Anyone who is entitled to be a group member (because they meet the group member criteria) is automatically a group member in the class action, whether or not they register, sign a retainer agreement with Bannister Law Class Actions or a funding agreement with Balance Legal Capital. Group members will be bound by the outcome of the class action unless they take steps to formally opt-out.

However, as stated in the Opt Out Notice and Supplementary Opt Out Notice, Balance Legal Capital’s continued involvement in the class action may depend on a sufficient number of group members entering into funding agreements, and so it is important that you take this matter into consideration when choosing whether to register your interest, sign up by entering into the retainer and funding agreements, do nothing or formally opt-out.

Further information in relation to your options in connection with the Toyota class action can be found in the Opt Out Notice and Supplementary Opt Out Notice available here.

There is no set deadline for signing up. If you wish to register either as a Represented Group Member or a Registered Unrepresented Group Member, please use the registration form located here.

However, as stated in the Opt Out Notice and Supplementary Opt Out Notice, Balance Legal Capital’s continued involvement in the class action may depend on a sufficient number of group members entering into funding agreements, and so it is important that you take this matter into consideration when choosing whether to register your interest, sign up by entering into the retainer and funding agreements, do nothing or formally opt-out.

The Toyota class action is an “open class action” meaning it has been brought by the lead applicant on his own behalf and on behalf of other persons who also own or have owned the affected Toyota vehicles (known as “group members”). The criteria for group members can be found here.

In an open class action, any group members who do not wish to participate in the class action (whether they are group members, Registered Group Members or Registered Unrepresented Group Members) must “opt out” of the class action. An Opt Out Notice and Supplementary Opt Out Notice ordered by the Court has been issued to group members, setting out their options for registering or opting out of the class action. A copy is available here.

The deadline for opting out of the class action has now passed. The deadline for filing an Opt-Out Notice with the Court was 30 September 2020 for Opt-Out Notices sent in July/August 2020 or 22 January 2021 for Opt-Out Notices sent in November/December 2020.

If you did not opt out by the deadline, you will no longer be able to “opt out” of the class action without special leave of the Court. If you did not opt out by 30 September 2020 or 22 January 2021, or sign up, you will remain as a group member and await the outcome of the class action. You will be an Unregistered Group Member, but if the class action is successful, then at some point in order to get any money out of any settlement or an award of damages (if that happens), you will need to register.

If you did not opt out, and have not registered, you can still choose to sign up as a Represented or Unrepresented Group Member by clicking on the register button here.

If you have signed a retainer agreement with Bannister Law Class Actions and a funding agreement with Balance Legal Capital, please request a call back here if the five business days cooling off period during which you can terminate those agreements has expired and you no longer wish to participate in the class action.

If you wish to sign up as a Represented Group Member in the Toyota class action, you will be asked to enter into two agreements:

1. a retainer agreement with Bannister Law Class Actions; and
2. a funding agreement with Balance Legal Capital.

The retainer agreement highlights that Bannister Law Class Actions agrees to conduct legal proceedings against Toyota Australia on behalf of Represented Group Members and will incur costs in doing so. If you sign this agreement you are retaining Bannister Law Class Actions to represent you in the class action.

Balance Legal Capital (Balance) is the litigation funder who is paying the costs (of, amongst others, Bannister Law Class Actions) of bringing this class action against Toyota in return for repayment of those costs plus a funding commission, should the class action be successful. This is what is set out in the funding agreement.

Group members are not, and will not be, responsible or liable for any “out of pocket” legal costs by remaining as group members in this class action (and whether or not they sign a retainer agreement with Bannister Law Class Actions and a funding agreement with Balance). At present, the costs of running the class action are being paid by Balance.

If you are considering becoming a Represented Group Member, you should read carefully the funding agreement and the retainer agreement and, if you then do not understand everything, you should get legal advice from your own family solicitor or a solicitor you choose.

If you meet the group member criteria then you are a group member automatically. Group members will be bound by the outcome of the class action unless they take steps to formally “opt out”.

The deadline for opting out of the class action has now passed. The deadline for filing an Opt-Out Notice with the Court was 30 September 2020 for Opt-Out Notices sent in July/August 2020 or 22 January 2021 for Opt-Out Notices sent in November/December 2020.

If you did not opt out by the deadline, you will no longer be able to “opt out” of the class action without special leave of the Court. If you did not opt out by 30 September 2020 or 22 January 2021, or sign up, you will remain as a group member and await the outcome of the class action. You will be an Unregistered Group Member, but if the class action is successful, then at some point in order to get any money out of any settlement or an award of damages (if that happens), you will need to register.

If you did not opt out, and have not registered, you can still choose to sign up as a Represented or Unrepresented Group Member by clicking here.

If you do nothing, that is, if you do not opt out or sign up, you will remain as a group member and await the outcome of the class action. You will be an Unregistered Group Member, but if the class action is successful, then at some point in order to get any money out of any settlement or an award of damages (if that happens), you will need to register.

For more information on time limits for opting out please refer to question 19.

A Represented Group Member is a group member who submits their details to Bannister Law Class Actions, enters into a retainer agreement with Bannister Law Class Actions and enters into a funding agreement with Balance Legal Capital (Balance).

Becoming a Represented Group Member will not require you to pay any “out of pocket” legal costs, but it will mean you agree to pay Balance a share of any money you receive from the class action in return for Balance having paid the legal and other expenses of the litigation (including paying Balance a funding commission). If you want to become a Represented Group Member, what you need to do is to:

• enter into the costs and funding agreements online by clicking the link below;
• telephone +61 2 7904 5470 or email toyotaclassaction@bannisterlaw.com.au; or
• request a call back here.

https://www.toyotaclassaction.com.au/register/

If you are considering becoming a Represented Group Member, you should read carefully the funding agreements including the retainer and, if you then do not understand everything, you should get legal advice from your own family solicitor or a solicitor you choose.

A Registered Unrepresented Group Member is a group member who only submits their details to Bannister Law Class Actions but does not enter into a retainer agreement with Bannister Law Class Actions or a funding agreement with Balance.

At the end of the class action, an order may be sought requiring Registered Unrepresented Group Members who benefit from the class action, to contribute to the costs and the funding of the action out of any money they receive. If you want to become a Registered Unrepresented Group Member, what you need to do is to:

• complete the form online by clicking the link below;
• telephone +61 2 7904 5470 or email toyotaclassaction@bannisterlaw.com.au; or
• request a call back here.

https://www.toyotaclassaction.com.au/register/

Further details about your options in relation to the Toyota class action are set out in the Opt Out Notice.

Group members who sign up provide their details and information about their claims to Bannister Law Class Actions.

Although you do not have to sign up to remain a group member, at some point you will need to register your interest to get any money out of any settlement or an award of damages (if that happens).

Also, an aspect of the funding of this class action by Balance Legal Capital (Balance) is that it can be withdrawn by Balance. The Court has been told that:

• in considering whether this class action is commercially viable and whether to continue to fund the proceedings, Balance will take into account the number of Represented Group Members and the value of the claims of the Represented Group Members; and
• Balance may decide to cease funding the proceeding if there are an insufficient number of Represented Group Members.

As Balance’s continued involvement may depend on a sufficient number of group members entering into funding agreements, it is important that you take this matter into consideration when choosing between the options set out in the Opt Out Notice.

On 23 October 2020, the Federal Court of Australia adopted an independent referee’s report which concludes that the Diesel Particulate Filter System (DPF System) in all Toyota Hilux, Prado and Fortuner diesel vehicles sold in Australia between October 2015 and April 2020 was defective.

A copy of the independent referee’s report can be found here.

A short summary of the key findings from the referee’s report can be found here.