biljana capic ford motor company of australia …

Prepared in the New South Wales District Registry, Federal Court of Australia

Level 17, Law Courts Building, Queens Square, Telephone 02 9230 8567

Federal Court of Australia

District Registry: New South Wales

Division: General No: NSD724/2016

BILJANA CAPIC Applicant

FORD MOTOR COMPANY OF AUSTRALIA LIMITED ACN 004 116 223 Respondent

ORDER

JUDGE: JUSTICE PERRAM

DATE OF ORDER: 29 January 2020

WHERE MADE: Sydney

THE COURT ORDERS THAT:

1. Pursuant to s 33J(1) of the Federal Court of Australia Act 1976 (Cth) (FCAA), 10

March 2020 be fixed as the date by which a Group Member may opt out of this

proceeding (Opt Out Date).

2. Pursuant to s 33Y(2) of the FCAA, the form and content of the notices set out in

Schedules A and B be approved, namely:

(a) Schedule A, being the “Notice”; and

(b) Schedule B, being the “Short Form Notice”.

3. The Second Respondent provide to Northside Printing Pty Ltd (ACN 074 841 142),

1A/6 Grosvenor Place, Brookvale NSW 2100 (Northside Printing), from the National

Exchange of Vehicle Driver Information System (NEVDIS), the names and postal

addresses of persons who are current registered operators of an Affected Vehicle, an

Affected Vehicle being one of the models described in Schedule C.

4. Pursuant to s33Y(3) of the Act, Notice and the Short Form Notice be given to Group

Members, as that term is defined in the Third Further Amended Statement of Claim

(3FASOC), according to the following procedure:

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(a) On or before 30 January 2020, the First Respondent shall provide to the Second

Respondent the Vehicle Identification Number (VIN) of each of the Affected

Vehicles, as that term is defined in the 3FASOC.

(b) On or before 31 January 2020:

(i) Upon being provided with an executed Supplementary Confidentiality

Agreement in substantially in the form of Schedule D, the Second

Respondent to shall provide to Northside Printing, from the NEVDIS, the

names and postal addresses of persons are current registered operators of

an Affected Vehicle.

(ii) The First Respondent shall provide to Northside Printing details of the

emails and postal addresses of Group Members recorded in its customer

database.

(c) On or before 14 February 2020, the Applicant shall cause, via Northside Printing,

distribution of the Notice to Group Members for whom contact details are

received by Northside Printing pursuant to order 4(b):

(i) by email, where an email address for the Group Member is available; or

(ii) where no email address for the Group Member is available, by prepaid

ordinary post.

(d) To the extent that Northside Printing receives notice of a delivery failure in

relation to any email sent to a Group Member, and a postal address is also

available for that Group Member, the Applicant shall cause Northside Printing to

send the Notice to that Group Member at the address recorded for that person,

within 3 business days of receiving that notice of delivery failure.

(e) On or before 14 February 2020, the Applicant shall cause, through her solicitors, a

copy of the Notice to be sent to each Group Member who has, at the date of this

order, entered into a litigation funding agreement with Martin Place Litigation

Services Pty Ltd and for whom the her solicitors hold a current email address.

(f) On or before 14 February 2020, the Applicant shall cause, through her solicitors, a

copy of the Notice to be sent to all other Group Members for whom her solicitors

have contact details:

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(i) by email, where a current email address for the Group Member is

available; or

(ii) where no email address is available, by prepaid ordinary post.

(g) The Notice and Short Form Notice be advertised according to the following

procedure:

(i) The Applicant shall cause a copy of the Notice, together with copies of the

Current Originating Application, Statement of Claim, Defence, this

Interlocutory Application and any orders of the Court relating to this

Interlocutory Application, to be displayed on the website

http://fordclassaction.net/ from 14 February 2020 until the final

disposition of this proceeding.

(ii) The District Registrar of the New South Wales Registry of the Federal

Court of Australia shall cause a copy of the Notice to be displayed on the

Federal Court website from 14 February 2020 until the final disposition of

this proceeding.

(iii) The First Respondent shall cause a copy of the Notice to be displayed on

the First Respondent’s website from 14 February 2020 until the final

disposition of this proceeding.

(iv) The Applicant shall cause a copy of the Short Form Notice to be published

on three weekday publications in the following newspapers from

14 February 2020 to 6 March 2020:

http://fordclassaction.net/

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Publication State/Territory

Herald Sun Victoria

The Daily Telegraph New South Wales

The Adelaide Advertiser South Australia

The Courier Mail Queensland

The Centralian Advocate Northern Territory

The West Australian Western Australia

Canberra Times Australian Capital Territory

The Mercury Tasmania

5. Pursuant to s 33Y and/or s 33ZF of the FCAA:

(a) the costs of, and incidental to, the procedure set out in order 4 above (including,

without limitation, costs incurred in addressing enquiries by Group Members and

members of the public in relation to the Notice and Short Form Notice); and

(b) the Second Respondent’s costs in the amount of $1,500, being for legal costs of

preparing the Supplementary Confidentiality Agreement appearing at Schedule D;

and

(c) the Second Respondent’s costs of complying with order 3, being costs of $1,500

per day with an estimate of 2 days’ work,

shall be paid in the first instance by the Applicant but shall be costs in the cause.

6. Pursuant to s 33ZF of the FCAA if, on or before the Opt Out Date, the solicitors for any

party receive a notice purporting to be an opt out notice referable to this proceeding, the

solicitors shall file that notice with the Federal Court of Australia, New South Wales

District Registry, within 3 days after receipt, and the notice shall be treated as an opt

out notice received by the Court at the time it was received by the solicitors.

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7. Pursuant to s 33Y and/or s 33ZF of the FCAA, the Applicant’s solicitors and the First

Respondent’s solicitors have leave to inspect the Court file and copy any opt out

notices filed.

Pre-trial timetable

8. Orders 12 and 13(d) made on 30 April 2019 be vacated.

9. Orders 5, 6, 7 and 8 made on 21 November 2019 be vacated.

10. The date in order 3 of the orders made 21 November 2019 be extended to 4.00 pm on

18 December 2019.

11. The Respondent file and serve any expert evidence on loss and damage by 4.00 pm on

11 March 2020.

12. The Applicant file and serve any expert evidence in reply on liability by 4.00 pm on

6 March 2020.

13. The parties agree a list of issues for expert conferral on liability by 17 March 2020.

14. The Applicant file and serve any expert evidence in reply on loss and damage by

4.00 pm on 2 April 2020.

15. The parties’ experts on liability are to:

(a) meet and confer, as appropriate, by no later than 3 April 2020; and

(b) provide the Court and the parties with joint reports containing their joint opinion

and, to the extent that the experts are unable to express a joint opinion on any

matter, the Joint Report is to describe the differences between the opinions and set

out the experts’ respective reasons for disagreeing by 4.00 pm on 21 April 2020.

16. The parties are to agree on a list of issues for expert conferral on loss and damage by

6 April 2020.

17. The parties’ experts on loss and damage are to:

(a) meet and confer, as appropriate, by no later than 16 April 2020; and

(b) provide the Court and the parties with joint reports containing their joint opinion

and, to the extent that the experts are unable to express a joint opinion on any

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matter, the Joint Report is to describe the differences between the opinions and set

out the experts’ respective reasons for disagreeing by 4.00 pm on 27 April 2020.

18. The parties attend a mediation before a mediator to be appointed by agreement of the

parties or, if the parties are unable to agree, by further order, by 15 May 2020.

19. The Applicant have leave to file and serve a Fourth Further Amended Statement of

Claim in which paragraph [30] is amended as follows:

“For the purposes of s. 271(a) of the ACL, the Applicant and those Group

Members who:

(a) acquired an interest in were supplied their an Affected Vehicles as

a consumer, and not other than by way of auction;

(b) acquired an interest in an Affected Vehicle from such a consumer

(other than for the purpose of re-supply); or

(c) derived title to acquired an interest in such an Affected Vehicle

through or under such a consumer,

(Guarantee Subgroup Members), are ‘affected persons’.”

20. By 4:00 pm on 8 May 2020, the Applicant is to provide to the Associate to Justice

Perram and serve on the Respondent a Court Book:

(a) in hard copy; and

(b) in electronic form (the Digital Court Book).

21. The Digital Court Book shall:

(a) include, as a separate document in Excel format, an index which contains an

individual hyperlink to each document included in the Court Book;

(b) comprise PDF documents which:

(i) are in native format or, where impracticable to do so, scanned and text

searchable format;

(ii) include at the start of the file name the corresponding tab number in the

index (for example, ‘00. Index.pdf’, ‘01. Originating Application.pdf’ and

so forth);

(iii) are paginated consistently with the hard copy Court Book; and

(c) be provided to the Associate to Justice Perram via USB or file-sharing service.

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22. If any uncertainty arises as to the appropriate preparation of the Digital Court Book, the

parties jointly approach the Associate to Justice Perram to seek further direction.

23. There is liberty to apply on 24 hours’ notice.

Date that entry is stamped: 29 January 2020

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Schedule A

Notice

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Ford DPS6 "PowerShift” Class Action – Notice of Opt Out Deadline Federal Court of Australia Case No. NSD724/2016

Important Notice Affecting Current and Former Owners of certain

Ford Focus, Ford Fiesta and Ford EcoSport cars

Why are you getting this notice?

A class action has been filed against Ford Australia (Ford) on behalf of current and former

owners of Ford Focus, Ford Fiesta and Ford EcoSport cars with a DPS6 "PowerShift"

transmission.

The class action, filed in the Federal Court of Australia, claims among other things that those

cars are not of acceptable quality, and seeks damages from Ford on behalf of the current and

former owners.

You are getting this notice because you may be a current or former owner. This notice describes

the class action and the steps you should take if you don’t want to be part of the class action. In

early 2018, you may have received a notice about a proposal to seek a “common fund order” in

this case. You can disregard that notice. It is replaced by this one.

You should read this notice carefully. Any questions you have concerning the matters

contained in this notice should NOT be directed to the Court, Ford or any Ford Dealer. If

there is anything in it that you do not understand, you should seek legal advice.

The opt out deadline is [10 March 2020].

What is this class action all about?

A class action is a claim which is made by one person (called the Applicant) for the benefit of

people with similar claims (called the Group Members). The Applicant in this case is Ms Biljana

Capic, a consumer who bought a Ford Focus. Ms Capic’s class action is for the benefit of all

current and former owners of Ford Focus, Ford Fiesta and Ford EcoSport models with a build

year between 2010 to 2016 (inclusive) fitted with a DPS6 "PowerShift" transmission.

It is claimed by the Applicant that:

(a) these cars have defects which affect their quality, safety, reliability and performance;

(b) these cars are not of acceptable quality;

(c) misrepresentations were made by Ford about the quality, safety, reliability and

performance of the car, its transmission system and about the nature of the DPS6

"Powershift" transmission

(d) between 1 May 2015 and 29 February 2016, Ford engaged in unconscionable conduct

by not dealing appropriately with requests by current and former owners of these cars

for a refund or replacement vehicle;

(e) because of the cars' defects current and former owners paid more for them than they

were worth and, in some cases, incurred other expenses or losses(e.g., repair costs);

and

(f) Ford should therefore pay compensation to those current and former owners.

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The trial will commence on 15 June 2020.

Group Members in a class action are "bound" by any judgment or settlement entered into in the

class action that is approved by the Court, unless they have opted out of the proceeding. This

means that:

(a) if the class action is successful, Group Members may be eligible for a share of any

settlement monies or Court - awarded damages;

(b) if the class action is unsuccessful, Group Members are bound by that result; and

(c) regardless of the outcome of the class action, Group Members will not be able to

pursue their claims against Ford in separate legal proceedings unless they have opted

out.

How do you know if you are affected by this class action?

You may be a Group Member in this class action if you acquired in Australia an interest in a Ford

Focus, Ford Fiesta or Ford EcoSport model fitted with a DPS6 "PowerShift" transmission

described below at any time between January 2011 and 29 November 2018. It does not matter

whether you bought or leased the car from a Ford dealer, a non-Ford dealer or privately or

whether it was supplied new or used.

Make Model Build Year

Focus Titanium LW 2011 – 2012

Sport LW 2011 – 2012

Trend LW 2011 – 2012

Ambiente LW 2011 – 2012

Sport LW MKII 2012 – 2015

Titanium LW MKII 2012 – 2015

Ambiente LW MKII 2012 – 2015

Trend LW MKII 2012 – 2015

Fiesta Zetec WT 2010 – 2013

LX WT 2010 – 2013

CL WT 2010 – 2013

Sport EcoBoost WZ 2012 – 2015

Trend WZ 2013 – 2016

Ambiente WZ 2013 – 2016

EcoSport Titanium BK 2013 – 2016

Trend BK 2013 – 2016

Ambiente BK 2013 – 2016

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What is 'Opt Out'?

The Applicant in a class action does not need to seek the consent of Group Members to

commence a class action on their behalf or to identify specific Group Members. However, Group

Members can cease to be Group Members by opting out of the class action. An explanation of

how Group Members are able to opt out is found below in the section headed "What do you need

to do if you do not want to be part of this case?".

Who pays the lawyers?

The Applicant’s lawyers are Corrs Chambers Westgarth. A company called Martin Place

Litigation Services Pty Limited (the Funder) is funding the case, which means that it is paying the

Applicant’s legal costs, including the Applicant’s costs of bringing the claim on behalf of all Group

Members.

You do not have to pay money in order to participate in this case. If the class action fails, you will

not have to pay anything.

Who pays the funding costs?

If there is a successful judgment or settlement, Group Members should be aware that, if an

application is made to the Court, and if in all the circumstances it is fair, just, equitable and in

accordance with principle, it is expected that the Court will make an appropriately framed order to

prevent unjust enrichment and equitably and fairly to distribute the burden of reasonable legal

costs, fees and other expenses, including reasonable litigation funding charges or commission,

amongst all persons who have benefited from the action. If there is a successful judgment or

settlement, it is intended that such an application be made.

What do you need to do if you want to continue to be part of this case?

You do not need to do anything to stay part of this case. You will continue to be part of this case

unless you follow the steps in the next section and “opt out” of the case.

You do not need to register, but you may do so by filling in your details online at

www.fordclassaction.net. Registration will ensure that you continue to be informed about the

progress of the case.

If you have already registered, you do not need to register again. If you are not able to complete

the online registration process, please email [email protected] or phone [insert].

If the class action is successful you will be entitled to share in the benefit of any order, judgment

or settlement in favour of the Applicant and Group Members, although you may have to satisfy

certain conditions before your entitlement arises.

All current and former owners of Ford cars who remain as Group Members will be bound by the

result of the case in so far as it relates to them. If the class action is unsuccessful, or is not as

successful as you might have wished, you will not be able to pursue the same claims and may

not be able to pursue related claims against Ford in other legal proceedings.

../../../../../../../../20608/ND%20Office%20Echo/AU-O7N3UNQ1/www.fordclassaction.net

mailto:[email protected]

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What do you need to do if you do not want to be part of this case?

If you do not want to be part of the case, you need to fill out a form and send it to the

Registrar of the Federal Court of Australia at the address on the form. IMPORTANT: the

notice must reach the Registrar by no later than [10 March 2020] otherwise it will not be

effective. The form is called an “Opt-Out Notice” and it is Annexure A to this notice. You can

also get a copy of the Opt Out Notice at:

(a) online at www.fordclassaction.net;

(b) by emailing [email protected];

(c) by writing to:

[Ford Class Action]

Corrs Chambers Westgarth

GPO Box 9925 in your capital city.

If you opt out of the case you will not be bound by or entitled to share in the benefit of any order, judgment or settlement in the class action, but you will be at liberty to bring your own claim against the Ford, provided that you issue Court proceedings within the time limit applicable to your claim. If you wish to bring your own claim against the Ford, you should seek your own legal advice about your claim and the applicable time limit prior to opting out. You should not delay making your decision.

http://www.fordclassaction.net/


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Annexure A – Opt Out Notice

Form 21

Rule 9.34

Opt out notice

No. NSD 724 of 2016



Division: General

Biljana Capic

Applicant

Ford Motor Company of Australia Limited (ACN 004 116 223)

Respondent

To: The Registrar


New South Wales District Registry

Locked Bag A6000

Sydney South NSW 1235

(name of group member), a class member in this class action,

gives notice under section 33J of the Federal Court of Australia Act 1976, that

(name of group member) is opting out of the class action.

Group Member Name

Make, Model and

Model year of the

Affected Vehicle

VIN of Affected Vehicle

Date:

(signature)

(print name)

(capacity, eg, group member / lawyer for group member / position

in company, if signing on company’s behalf)

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Schedule B

Short form notice

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Ford DPS6 "PowerShift” Class Action – Notice of Opt Out Deadline

A class action has been filed in the Federal Court of Australia against Ford Australia (Ford) by

Ms Biljana Capic (the Applicant) on behalf of current and former owners of certain models of

Ford Focus, Ford Fiesta and Ford EcoSport cars with a DPS6 "PowerShift” transmission (Group

Members). The class action claims that those cars have defects, and seeks damages from Ford

on behalf of the Group Members.

The Federal Court has ordered that this notice, and a longer-form notice available at

www.fordclassaction.net, be published to provide information to persons who may be Group

Members. Any person who acquired an interest in Ford Focus, Ford Fiesta and Ford EcoSport

models with a build year between 2010 – 2016 (inclusive) fitted with a DPS6 "PowerShift”

transmission at any time between January 2011 and 29 November 2018 should read this notice

carefully as it may affect their rights.

Why is this notice is important?

You should read this notice and the long-form notice carefully. This notice contains

important information about the proceeding and your rights – in particular, your right to opt out of

the class action. The opt out deadline is [10 March 2020]. If you have questions about the notice

you should seek your own independent legal advice. You should not seek advice from Ford or

any Ford Dealer.

Information about the class action and whether you are a Group Member

You may be a Group Member in this class action if you acquired an interest in Ford Focus, Ford

Fiesta and Ford EcoSport models with a build year between 2010 – 2016 (inclusive) fitted with a

DPS6 "PowerShift” transmission at any time between January 2011 and 29 November 2018. It

does not matter whether you bought or leased the car, whether it was supplied new or used, or

whether it was supplied to you by a dealer or privately. Details of the affected vehicles as well as

more information about the criteria for being a Group Member are set out in the long-form notice.

If there is a successful judgment or settlement, Group Members should be aware that, if an

application is made to the Court, and if in all the circumstances it is fair, just, equitable and in

accordance with principle, it is expected that the Court will make an appropriately framed order to

prevent unjust enrichment and equitably and fairly to distribute the burden of reasonable legal

costs, fees and other expenses, including reasonable litigation funding charges or commission,

amongst all persons who have benefited from the action. If there is a successful judgment or

settlement, it is intended that such an application be made.

What is opt out?

A class action can be commenced by one person on behalf of Group Members without the

consent or involvement of the Group Members. However, Group Members can “opt out” of the

proceeding.

If you wish to continue to be part of this case, you do not need to do anything. You will continue

to be part of this case unless you “opt out”. You do not need to register, but you may do so by

filling in your details online at www.fordclassaction.net. Registration will ensure that you continue

to be informed about the progress of the case.



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If you do not want to remain part of the case, then you must submit an “opt out” notice form to the

NSW Registrar of the Federal Court of Australia at the address on the form by [10 March 2020]

otherwise it will not be effective.

More information

More information on the class action, including the Notice to Opt Out may be obtained from Corrs

Chambers Westgarth, the solicitors acting for the Applicant in the class action, online at

www.fordclassaction.net, or by email at [email protected]



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Schedule C

Affected Vehicles

Make Model Build Year

Focus Titanium LW 2011 – 2012

Sport LW 2011 – 2012

Trend LW 2011 – 2012

Ambiente LW 2011 – 2012

Sport LW MKII 2012 – 2015

Titanium LW MKII 2012 – 2015

Ambiente LW MKII 2012 – 2015

Trend LW MKII 2012 – 2015

Fiesta Zetec WT 2010 – 2013

LX WT 2010 – 2013

CL WT 2010 – 2013

Sport EcoBoost WZ 2012 – 2015

Trend WZ 2013 – 2016

Ambiente WZ 2013 – 2016

EcoSport Titanium BK 2013 – 2016

Trend BK 2013 – 2016

Ambiente BK 2013 – 2016

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Schedule D

Supplementary Confidentiality Agreement

Sparke Helmore Lawyers

Page 2

Contents

Parties 4

Background 4

Operative part 5

1 Definitions 5

2 Interpretation 5

2.1 General 5

2.2 Construction 6

2.3 Timing of acts or things 6

3 Covenant 7

3.1 Confidential Information 7

3.2 Benefit of doubt 7

3.3 Australian Privacy Principles 7

3.4 Conflicts 7

4 Reliance on Confidential Information 7

4.1 No warranty 7

4.2 No reliance 7

5 Disclosure obligations 8

5.1 Non-disclosure 8

5.2 Exception to non-disclosure 8

6 Breach and indemnity 8

6.1 Breach 8

6.2 Indemnity 8

6.3 Guarantee 9

6.4 Account 9

6.5 Injunctive relief 9

7 Return of Confidential Information 9

7.1 Information that must be returned 9

7.2 Continuing obligations 9

8 Rights reserved 9

8.1 Basis of providing information 9

8.2 Rights in Confidential Information 10

9 General 10

9.1 Notices 10


Page 3

9.2 Address for Service 11

9.3 Costs and expenses 11

9.4 Relationship between parties 11

9.5 Further assurances 12

9.6 Variation 12

9.7 No assignment or transfer 12

9.8 Counterparts 12

9.9 Stamp duty 12

9.10 Entire agreement 12

9.11 Invalidity 12

9.12 Waiver 13

9.13 Survival after termination 13

9.14 Governing law and jurisdiction 13

Schedule 1 14

Annexure A 18

Deed Date

Parties

First party

Name Austroads Limited (Austroads)

ACN 136 182 390

Contact Tim Matthews

Telephone 02 8265 3300

Second party

Name Northside Printing Pty Ltd (Northside Printing)

ACN 074 841 142

Contact Jason Agapiou


Third party

Name Jason Agapiou (Mr Agapiou)


Background

A. On 17 May 2016, class action proceedings were commenced against Ford Motor Company

Australia Limited in the Federal Court of Australia.

B. A list of orders in the proceedings, Biljana Capic v Ford Motor Company of Australia Ltd

NSD724/2016 are on the Court’s webpage, including (relevantly) orders made on 22

December 2017.

C. On 16 January 2018:

the Court made orders which (among other things) varied the orders of 22 December

2017;

Austroads, Northside Printing, Mr Agapiou and Mr Wildschut entered into a

Confidentiality Agreement (Deed) in accordance with the orders made on 16 January

2018.

D. On 29 January 2020, the Court made orders (the Orders) which essentially require Austroads

to update the information produced pursuant to the orders of 16 January 2018 in accordance

with a confidentiality agreement similar to the Deed.


Page 5

E. The Orders are at Annexure A to this deed.

F. This “Supplementary Confidentiality Agreement” is the confidentiality agreement mentioned in

the Orders.

Operative part

1 Definitions

In this Deed:

APPs means the Australian Privacy Principles in the Privacy Act 1988 (Cth).

Associated Person means Northside Printing’s employees, officers, directors and professional

advisors, and any Related Body Corporate of Northside Printing.

Confidential Information means personal information in NEVDIS data to be provided by Austroads

in accordance with the Orders, other than Excluded Information, and includes any information

generated by a party or derived from confidential information made available to the Recipient by

Austroads.

Excluded Information means information which:

(a) is or becomes generally available to the public other than as a result of action by the

Recipient or an Associated Person;

(b) became available to the Recipient or any of its Associated Persons on a non-

confidential basis from another person who, having regard to all relevant circumstances

including the nature of the information disclosed by that person and any connection,

whether past or present, between that person and Austroads or any of its Related

Bodies Corporate, could reasonably be regarded as having been entitled to make that

disclosure;

(c) Austroads has stated in writing not to be confidential; or

(d) has been independently acquired or developed by Northside Printing or its Associated

Persons without breaching any of the obligations under this agreement and without the

use of confidential information provided by Austroads.

Purpose means the distribution procedure mentioned in the Orders.

Recipient means a party that receives Confidential Information from Austroads, being:

(a) Northside Printing; and/or

(b) Mr Agapiou.

Third Party means any person other than the parties to this deed.

2 Interpretation

2.1 General

In this deed, unless the context indicates a contrary intention:

(a) (documents) a reference to a document is to the document as varied, amended,

supplemented, novated or replaced from time to time;


Page 6

(b) (references) a reference to a party, clause, paragraph, schedule or annexure is to a

party, clause, paragraph, schedule or annexure to or of this deed;

(c) (headings) clause headings and the table of contents are inserted for convenience only

and do not affect the interpretation of this deed;

(d) (Background) the Background forms part of this deed;

(e) (person) a reference to a person includes a natural person, corporation, statutory

corporation, partnership, the Crown and any other organisation or legal entity and their

permitted novatees, permitted assignees, personal representatives and successors;

(f) (including) including and includes (and any other similar expressions) are not words of

limitation and a list of examples is not limited to those items or to items of a similar kind;

(g) (corresponding meanings) a word that is derived from a defined word has a

corresponding meaning;

(h) (singular and plural) the singular includes the plural and the plural includes the singular;

(i) (gender) words importing one gender include all other genders;

(j) (legislation) a reference to legislation or any legislative provision includes:

1) any modification or substitution of that legislative provision; and

2) any subordinate legislation issued under that legislation or legislative provision

including under that legislation or legislative provision as modified or substituted;

(k) (time and date) a reference to a time or date is to the time and date in , Australia;

(l) (joint and several) an agreement, representation, covenant, warranty, right or

obligation:

1) in favour of two or more persons is for the benefit of them jointly and severally; and

2) on the part of two or more persons binds them jointly and severally;

(m) (replacement bodies) a reference to a body that ceases to exist or whose powers or

functions are transferred to another body is to the body that replaces it or that

substantially succeeds to its powers or functions; and

(n) (Australian currency) a reference to dollars or $ is to Australian currency.

2.2 Construction

Neither this deed nor any part of it is to be construed against a party on the basis that the

party or its lawyers were responsible for its drafting.

2.3 Timing of acts or things

(a) If the time for doing any act or thing required to be done under this deed or a notice

period specified in this deed expires on a day other than a Business Day, the time for

doing that act or thing or the expiration of that notice period is extended until the

following Business Day.

(b) If any act or thing done under this deed is done after 5 pm on a day, it is taken to

have been done on the following Business Day.


Page 7

3 Covenant

3.1 Confidential Information

The Recipients acknowledge:

(a) that all Confidential Information provided to it by Austroads or to which it is exposed

under this deed is confidential and valuable property of Austroads; and

(b) that Austroads would suffer damage or loss by any unauthorised disclosure of the

Confidential Information by the Recipient.

3.2 Benefit of doubt

If there is any doubt whether particular information is Confidential Information, the Recipient must

treat it as Confidential Information until Austroads confirms otherwise in writing.

3.3 Australian Privacy Principles

The Recipients will, and will ensure their Associated Persons will, comply with APPs 6 and 11 in

Schedule 1 to this deed as if:

(a) The Recipients are an “APP entity” within the meaning of the APPs;

(b) The Purpose (as defined in this deed) is the “primary purpose” in APP 6;

(c) Confidential Information (as defined in this deed) is “personal information” in APPs 6

and 11.

3.4 Conflicts

Any conflict between the Recipient’s obligations under APPs 6 and 11 on the one hand, and

their obligations under this deed on the other hand, will be resolved in favour of their

obligations under this deed.

4 Reliance on Confidential Information

4.1 No warranty

Northside Printing acknowledges that Austroads:

(a) makes no representation or warranty, express or implied, as to the accuracy, content,

legality or completeness of the Confidential Information;

(b) is under no obligation to notify the Recipient or provide any further information to the

Recipient if it becomes aware of any inaccuracy, incompleteness or change in the

Confidential Information; and

(c) makes no representation or warranty, express or implied, as to whether the Confidential

Information infringes the intellectual property rights or any other rights of any person.

4.2 No reliance

(a) Northside Printing acknowledges that it will not rely on any Confidential Information and

will rely on its own independent enquiries and assessment.

(b) Austroads disclaims any liability which arises from Northside Printing’s reliance on any

Confidential Information provided by Austroads.


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5 Disclosure obligations

5.1 Non-disclosure

(a) Subject to clause 5.2, the Recipients will, and will ensure its Associated Persons will:

1) maintain the confidential nature of the Confidential Information;

2) not, without Austroad’s prior written consent disclose any of the Confidential

Information to any person other than for the Purpose;

3) not use or reproduce any of the Confidential Information for any purpose other

than the Purpose;

4) establish and maintain effective security measures to safeguard the Confidential

Information from unauthorised access, use, copying or disclosure; and

5) immediately notify Austroads of any potential, suspected or actual unauthorised

use, copying or disclosure of the Confidential Information and will take all steps

which Austroads may reasonably require in relation to such unauthorised

disclosure, use, breach or compromise.

(b) The Recipients will not disclose any Confidential Information to an Associated Person

without Austroads’ prior written permission.

5.2 Exception to non-disclosure

If the Recipient is required by law, court order or the requirement of any regulatory body to disclose

any Confidential Information provided to it, the Recipient:

(a) may disclose that portion of the Confidential Information;

(b) must notify Austroads in writing of the requirement to disclose as soon as practicable

unless prohibited by law from doing so;

(c) must, to the extent practicable, give Austroads a reasonable opportunity to take any

steps it considers appropriate to protect the Confidential Information or to prevent or

limit the disclosure of the Confidential Information; and

(d) must use its best endeavours to obtain confirmation that the Confidential Information

disclosed is given confidential treatment.

6 Breach and indemnity

6.1 Breach

If the Recipient knows or suspects that it or an Associated Person has breached this agreement, the

Recipient must:

(a) immediately notify Austroads of the suspected or actual breach; and

(b) take all reasonable steps, at its own expense, to prevent or stop the suspected or

actual breach; and

(c) mitigate any loss or damage it may sustain or incur as a result of the breach.

6.2 Indemnity

Subject to clause 6.1, Northside Printing and Mr Agapiou indemnify Austroads against all loss or

damage that Austroads may sustain or incur as a result, whether directly or indirectly of:


Page 9

(a) a breach of this agreement by the Recipient; or

(b) an act or omission by an Associated Person which, if done or omitted to be done by the

Recipient would be a breach of the Recipient’s obligations under this agreement.

6.3 Guarantee

Mr Agapiou guarantees Northside Printing’s compliance with its obligations under this deed.

6.4 Account

If, in breach of this agreement, the Recipient or an Associated Person uses, grants access to,

discloses to or permits a Third Party to use any Confidential Information, any and all profit, other

rights or benefits accruing to the Recipient, Associated Person or any Third Party as a consequence:

(a) are to the account of, and are to be held on trust for, Austroads by the Recipient; or

(b) are payable by the Recipient as if held on trust by that Associated Person or Third

Party for Austroads.

6.5 Injunctive relief

The Recipient acknowledges that damages are not a sufficient remedy for Austroads for any breach

of this agreement and Austroads is entitled to seek specific performance or injunctive relief (as

appropriate) as a remedy for any breach or threatened breach by the Recipient or an Associated

Person, in addition to any other remedies available to Austroads at law or in equity.

7 Return of Confidential Information

7.1 Information that must be returned

Subject to clause 7.2, at Austroads’ request, the Recipient must:

(a) return to Austroads; or

(b) at the election of Austroads, destroy and certify to Austroads the destruction of,

all Confidential Information, stored in any medium, in the Recipient’s possession or control (including

the original medium, copies of that part of notes and other records prepared by the Recipient based

on or incorporating any Confidential Information) when the Purpose has been achieved.

7.2 Continuing obligations

Return of the documents or other materials referred to in clause 7.1 does not release the Recipient

from its obligations under this agreement.

8 Rights reserved

8.1 Basis of providing information

This deed and the provision or receipt of Confidential Information does not:

(a) oblige any party to negotiate or endeavour to reach agreement with any other person;

(b) impose any duty on Austoads to achieve the Purpose; or

(c) be considered or construed as evidence of any agreement, arrangement,

understanding or proposal by or between the parties or any of them relating to the

subject matter of the Purpose.


Page 10

8.2 Rights in Confidential Information

(a) Austroads reserves all rights in the Confidential Information and no rights or obligations,

other than those expressly contained in this agreement, are granted or to be implied

from this agreement.

(b) In particular, no licence is granted directly or indirectly under any patent, invention,

discovery, copyright or other intellectual property right now or in the future held, made,

obtained or licensable by Austroads.

(c) Northside Printing acknowledges that the Confidential Information and all intellectual

property rights in the Confidential Information (including copyright, design and patent

rights), or arising as a result of the disclosure of the Confidential Information by

Austroads to, or the use or evaluation of the Confidential Information by the Recipient,

are the exclusive property of and will remain the exclusive property of Austroads and

the Recipient will do all things and execute all documents necessary to vest those

rights in Austroads.

9 General

9.1 Notices

Any notice or consent given under or in connection with this deed (Notice):

(a) must be in writing;

(b) must be addressed and delivered to the intended recipient by hand, by post, by fax or

by email at its Address for Service; and

(c) subject to clause 2.3(b) and this clause 9.1, is taken to be given and received:

1) in the case of hand delivery, when delivered;

2) in the case of delivery by post:

(A) if the notice is posted in the capital city of a State to an address in that city,

three Business Days after the date of posting; or

(B) if the notice is posted in the capital city of a State to an address in the

capital city of another State, five Business Days after the date of posting;

3) in the case of delivery by fax, at the time when the fax is sent, provided that the

sender’s facsimile machine issues a report confirming the transmission of the

number of pages in the Notice; and

4) in the case of delivery by email, at the time when the email is capable of being

retrieved by the addressee at the email address in its Address for Service.


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9.2 Address for Service

(a) The Addresses for Service of the parties are:

1) to Austroads Limited: Postal address:

Level 9, 287 Elizabeth Street,

SYDNEY NSW 2000

Fax: 02 8265 3399

Email: [email protected]

Attention: Tim Matthews

2) to Northside Printing Pty Ltd: Postal address:

1a/6 Grosvenor Place

BROOKVALE NSW 2100

Fax: 02 9939 7965


Attention: Jason Agapiou

3) to Jason Agapiou: Postal address:

c/- Northside Printing

1a/6 Grosvenor Place

BROOKVALE NSW 2100

Fax: 02 9939 7965


(b) Subject to clause 9.2(c), a party may change its Address for Service and must promptly

notify each other party of any such change.

(c) Each party must not change its postal address in its Address for Service to a postal

address that is not in the capital city of a State.

9.3 Costs and expenses

Subject to the orders made by the Federal Court of Australia on or about 29 January 2020 in

proceeding NSD724/2016, each party will bear its own costs and expenses of negotiating and

performing its obligations under this deed.

9.4 Relationship between parties

(a) Nothing in this deed:

1) constitutes a partnership between the parties; or

2) except as expressly provided, makes a party an agent of another party for any

purpose.





Page 12

(b) A party cannot in any way or for any purpose:

1) bind another party; or

2) contract in the name of another party.

9.5 Further assurances

Except as expressly provided in this deed, each party must, at its own expense, do all things

reasonably necessary (including executing documents) to give full effect to this deed and the

matters contemplated by it.

9.6 Variation

No variation of this deed is effective unless made in writing and signed by each party.

9.7 No assignment or transfer

A party cannot assign or otherwise transfer its rights under this deed without the prior consent

of the other party.

9.8 Counterparts

This deed may be executed in any number of counterparts. All counterparts taken together

constitute one instrument.

9.9 Stamp duty

Northside Printing must pay any stamp duty assessed on or in relation to this deed and any

instrument or transaction required by or necessary to give effect to this deed.

9.10 Entire agreement

(a) Subject to subparagraph (b), the contents of this deed constitute the entire agreement

between the parties in relation to its subject matter and supersedes any prior

negotiations, representations, understandings or arrangements made between the

parties regarding the subject matter of this deed, whether orally or in writing.

(b) The Deed dated 16 January 2018 remains in place and unaffected by this deed.

9.11 Invalidity

(a) A word or provision must be read down if:

1) this deed is void, voidable, or unenforceable if it is not read down;

2) this deed will not be void, voidable or unenforceable if it is read down; and

3) the provision is capable of being read down.

(b) A word or provision must be severed if:

1) despite the operation of clause 9.11(a), the provision is void, voidable or

unenforceable if it is not severed; and

2) this deed will be void, voidable or unenforceable if it is not severed.

(c) The remainder of this deed has full effect even if clause 1) or clause 2) applies.


Page 13

9.12 Waiver

A right or remedy created by this deed cannot be waived except in writing signed by the party

entitled to that right or remedy. Delay by a party in exercising a right or remedy does not

constitute a waiver of that right or remedy, nor does a waiver (either wholly or in part) by a

party of a right or remedy operate as a subsequent waiver of the same right or remedy or of

any other right or remedy of that party.

9.13 Survival after termination

Clauses 3 – 8 continue to apply after expiration or termination of this deed.

9.14 Governing law and jurisdiction

(a) The laws applicable in New South Wales govern this deed.

(b) The parties submit to the non-exclusive jurisdiction of the courts of New South Wales

and any courts competent to hear appeals from those courts.


Page 14

Schedule 1

6 Australian Privacy Principle 6—use or disclosure of personal information

Use or disclosure

6.1 If an APP entity holds personal information about an individual that was collected for a

particular purpose (the primary purpose), the entity must not use or disclose the

information for another purpose (the secondary purpose) unless:

(a) the individual has consented to the use or disclosure of the information; or

(b) subclause 6.2 or 6.3 applies in relation to the use or disclosure of the information.

6.2 This subclause applies in relation to the use or disclosure of personal information about

an individual if:

(a) the individual would reasonably expect the APP entity to use or disclose the

information for the secondary purpose and the secondary purpose is:

(i) if the information is sensitive information—directly related to the primary

purpose; or

(ii) if the information is not sensitive information—related to the primary

purpose; or

(b) the use or disclosure of the information is required or authorised by or under an

Australian law or a court/tribunal order; or

(c) a permitted general situation exists in relation to the use or disclosure of the

information by the APP entity; or

(d) the APP entity is an organisation and a permitted health situation exists in relation

to the use or disclosure of the information by the entity; or

(e) the APP entity reasonably believes that the use or disclosure of the information is

reasonably necessary for one or more enforcement related activities conducted by,

or on behalf of, an enforcement body.

6.3 This subclause applies in relation to the disclosure of personal information about an

individual by an APP entity that is an agency if:

(a) the agency is not an enforcement body; and

(b) the information is biometric information or biometric templates; and

(c) the recipient of the information is an enforcement body; and

(d) the disclosure is conducted in accordance with the guidelines made by the

Commissioner for the purposes of this paragraph.

6.4 If:

(a) the APP entity is an organisation; and

(b) subsection 16B(2) applied in relation to the collection of the personal information

by the entity;


Page 15

the entity must take such steps as are reasonable in the circumstances to ensure that the

information is de-identified before the entity discloses it in accordance with

subclause 6.1 or 6.2.

Written note of use or disclosure

6.5 If an APP entity uses or discloses personal information in accordance with

paragraph 6.2(e), the entity must make a written note of the use or disclosure.

Related bodies corporate

6.6 If:

(a) an APP entity is a body corporate; and

(b) the entity collects personal information from a related body corporate;

this principle applies as if the entity’s primary purpose for the collection of the

information were the primary purpose for which the related body corporate collected the

information.

Exceptions

6.7 This principle does not apply to the use or disclosure by an organisation of:

(a) personal information for the purpose of direct marketing; or

(b) government related identifiers.

…

11 Australian Privacy Principle 11—security of personal information

11.1 If an APP entity holds personal information, the entity must take such steps as are

reasonable in the circumstances to protect the information:

(a) from misuse, interference and loss; and

(b) from unauthorised access, modification or disclosure.

11.2 If:

(a) an APP entity holds personal information about an individual; and

(b) the entity no longer needs the information for any purpose for which the

information may be used or disclosed by the entity under this Schedule; and

(c) the information is not contained in a Commonwealth record; and

(d) the entity is not required by or under an Australian law, or a court/tribunal order,

to retain the information;

the entity must take such steps as are reasonable in the circumstances to destroy the

information or to ensure that the information is de-identified.


Page 16

Executed as a deed

Executed by Austroads Limited

ACN 136 812 390 in accordance with

section 127 of the Corporations Act 2001

(Cth) by:

)

)

)

)

)

........................................................................

Signature of Director

........................................................................

Signature of Director/Secretary

........................................................................

Print name of Director

........................................................................

Print name of Director/Secretary

Executed by Northside Printing Pty Ltd

ACN 074 841 142 in accordance with

section 127 of the Corporations Act 2001

(Cth) by:

)

)

)

)

)

........................................................................

Signature of Sole Director and Sole

Secretary

........................................................................

Print name of Sole Director and Sole

Secretary


Page 17

Signed, sealed and delivered by Jason

Agapiou in the presence of:

)

)

)

........................................................................

Signature of Witness

........................................................................

Signature of Jason Agapiou

........................................................................

Print name of Witness


Page 18

Annexure A

Schedule

No: NSD724/2016



Division: General

Second Respondent AUSTROADS LIMITED ACN 136 812 390

biljana capic ford motor company of australia …

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