Allen v The Haines Group Pty Ltd - [2019] FCCA 2253

FEDERAL CIRCUIT COURT OF AUSTRALIA

ALLEN v THE HAINES GROUP PTY LTD & ANOR

[2019] FCCA 2253

Catchwords:
CONSUMER LAW – Application for specific discovery, interrogatories and cross examination of witnesses who verified discovery – consideration of purpose of the Act and the Rules – general principles of discovery and interrogatories not allowed – application dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), ss.13.03A, 13.03B, 14.01

Federal Circuit Court Act 1999 (Cth), s.45

Cases cited:

Abrahams v Qantas Airways Limited (No.2) (2007) 210 FLR 314
Kautto v La Trobe Capital [2011] WASC 157
Kettlewell v Barstown (1872) LR 7 CH.App 686
Vinden v Wrong Fuel Rescue Pty Ltd & Anor [2019] FCCA 1091

Applicant:

MARTIN ALLEN

First Respondent:

THE HAINES GROUP PTY LTD
(ACN 155 792 848)

Second Respondent:

GOOD TIMES MARINE PTY LTD
(ACN 124 734 612)

File Number:

SYG 1320 of 2018

Judgment of:

Judge Humphreys

Hearing date:

2 August 2019

Date of Last Submission:

2 August 2019

Delivered at:

Parramatta

Delivered on:

16 August 2019

REPRESENTATION

Counsel for the Applicant:

Mr Parish

Solicitors for the Applicant:

MDW LAW

Counsel for the Respondents:

Mr Given

Solicitors for the Respondents:

Macpherson Kelley

ORDERS

The application for an order pursuant to 13.03B (2)(a) of the Rules for further verified disclosure of a number of categories of documents set out within the application in a case, the administrative of interrogatories and leave to cross examine the deponents of the affidavits made in relation to discovery is denied.
Costs will be reserved in relation to this application.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1320 of 2018

MARTIN ALLEN

Applicant

And

THE HAINES GROUP PTY LTD (ACN 155 792 848)

First Respondent

GOOD TIMES MARINE PTY LTD (ACN 124 734 612)

Second Respondent

REASONS FOR JUDGMENT

Introduction

The applicant purchased in 2015, a Haines Signature 650F model boat, manufactured by the first respondent. It is alleged that the boat is the subject of a significant number of faults and the boat is not of acceptable quality and/ or unfit for purpose. The applicant seeks quantifiable loss or damage in the amounts of:
a)Full purchase price in the amount of $115,000.00.
b)The amount of $6884.08 for repairs conducted on the boat.
c)The amount of $1095.00 for the transport costs as a result of the repair work conducted by the first respondent.
d)The amount of $6441.78 for the associated and consequential costs borne by the applicant in maintaining, operating and storing the boat, inter alia, of which the applicant is currently, by virtue of the conduct of the first and second respondents, unable to enjoy.
The matter has been the subject of a number of orders by Nicholls J, including orders for discovery against the respondents.

Application in a Case

By application dated 12 July 2019, the applicant seeks a number of orders including the following:
a)That a regime be put in place for further discovery by the respondents of certain categories, along with interrogatories to test whether there has been…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Allen v The Haines Group Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2019] FCCA 2253
Decision Date: 16 August 2019

CaseChat Overview and Summary

In *Allen v The Haines Group Pty Ltd*, the applicant, Martin Allen, alleged that a boat he purchased from the first respondent, The Haines Group Pty Ltd, was not of acceptable quality and was unfit for purpose, seeking significant financial compensation for the purchase price, repairs, transport, and associated costs. The matter came before Judge Humphreys in the Federal Circuit Court of Australia.

The applicant sought further verified disclosure of documents, the administration of interrogatories, and leave to cross-examine the deponents of affidavits verifying discovery. These applications were made pursuant to specific rules of the Federal Circuit Court Rules 2001 (Cth), with the applicant contending that the respondents had not made full and verified disclosure as required by previous orders. The applicant also sought judgment against the respondents for alleged defaults in discovery or, alternatively, orders for contempt.

Judge Humphreys dismissed the applicant's applications. The court considered the purpose of the relevant rules and the general principles governing discovery and interrogatories. The judge found that the applicant had not established grounds for the extensive further discovery, interrogatories, or cross-examination sought, indicating that the general principles of discovery and interrogatories were not to be circumvented without sufficient justification.

Consequently, the application for further verified disclosure, interrogatories, and leave to cross-examine was denied. Costs in relation to this specific application were reserved.

Orders

Orders of the court

The application for an order pursuant to 13.03B (2)(a) of the Rules for further verified disclosure of a number of categories of documents set out within the application in a case, the administrative of interrogatories and leave to cross examine the deponents of the affidavits made in relation to discovery is denied.

Costs will be reserved in relation to this application.

FEDERAL CIRCUIT COURT

OF AUSTRALIA

AT SYDNEY

SYG 1320 of 2018

MARTIN ALLEN

Applicant

And

THE HAINES GROUP PTY LTD (ACN 155 792 848)

First Respondent

GOOD TIMES MARINE PTY LTD (ACN 124 734 612)

Second Respondent

REASONS FOR JUDGMENT

Introduction

The applicant purchased in 2015, a Haines Signature 650F model boat, manufactured by the first respondent. It is alleged that the boat is the subject of a significant number of faults and the boat is not of acceptable quality and/ or unfit for purpose. The applicant seeks quantifiable loss or damage in the amounts of:

a) Full purchase price in the amount of $115,000.00.

b) The amount of $6884.08 for repairs conducted on the boat.

c) The amount of $1095.00 for the transport costs as a result of the repair work conducted by the first respondent.

d) The amount of $6441.78 for the associated and consequential costs borne by the applicant in maintaining, operating and storing the boat, inter alia, of which the applicant is currently, by virtue of the conduct of the first and second respondents, unable to enjoy.

The matter has been the subject of a number of orders by Nicholls J, including orders for discovery against the respondents.

Application in a Case

By application dated 12 July 2019, the applicant seeks a number of orders including the following:

a) That a regime be put in place for further discovery by the respondents of certain categories, along with interrogatories to test whether there has been full and verified disclosure by the respondents under rule 14.01 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”).

b) If compliance is forthcoming as to the disclosure sought, judgment be entered against the respondents in accordance with r 13.03B(2)(d) of the rules for defaults under sub rules 13.03A(2)(iii), 4, 5, and 6 of the Rules.

c) In the alternative, a charge of contempt be bought against the respondents along with costs orders.

The matter was listed for a hearing in relation to the application in a case on Friday 2 August before myself. Previously, the matter had been in the docket of Nicholls J, however, it has been transferred to my docket and will now remain with me to conclusion.

The Applicant’s Submissions

An order was made by Nicholls J on 11 October 2018 for discovery pursuant to s 45(1) of the Federal Circuit Court Act 1999 (Cth) (“the Act”). An order for general disclosure was made by consent, pursuant to rule 14.02(2) by Nicholls J.

On 30 November 2018, the respondents provided a verified list of documents (first tranche) accompanied by an affidavit sworn by Daniel Wignall, deposing that he had been informed by Richard Gavin, Chief Financial Officer of the first respondent, Haines, and Derek Rodway, Director of Good Times Marine, the second respondent that they both had made reasonable enquiries as to the existence and location of documents specified in the Order of Nicholls J.

On 10 December 2018, the applicant’s solicitors sent an email noting that various categories of documents that they might expect would be caught by the general discovery order, appeared to be missing including:

a) Internal correspondence of the parties;

b) Correspondence of other aggrieved purchasers;

c) Correspondence between Haines and the manufacturer of the boat’s windscreens (Alfab); and

d) Design specifications of the boat including windscreens and hard tops.

On 19 December 2018, the applicant’s solicitors sent a letter in the same terms as the email dated 10 December 2018 requiring “confirmation as to whether your clients have in their possession, custody or control, any of the above documents and to the extent to which they do, please provide an explanation as to why those documents have not been disclosed to date pursuant to the general discovery order of 11 October 2018.”

On 29 January 2019, a further list of documents was provided by Haines (second tranche) in which;

a) There was no accompanying affidavit; and

b) There was no substantive response to the letter of 19 December 2018.

10.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.