Bloom v Legend Corporation Pty Ltd (No 2) - [2024] FCA 540

FEDERAL COURT OF AUSTRALIA
Bloom v Legend Corporation Pty Ltd (No 2) [2024] FCA 540

File number: WAD 22 of 2017

Judgment of: JACKSON J

Date of judgment: 21 May 2024

Catchwords: PRACTICE AND PROCEDURE - application for leave to amend defence - whether leave would prejudice the applicant - whether trial dates at risk - proceeding commenced around seven years ago - almost nine months until trial - proposed factual amendments inherent in existing pleadings - application granted

Legislation: Competition and Consumer Act 2010 (Cth) Schedule 2 (Australian Consumer Law) ss 7, 54, 138

Cases cited:
Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175

Bloom v Legend Corporation [2022] FCA 746

Caason Investments Pty Ltd v Cao [2015] FCAFC 94; (2015) 236 FCR 322

Division: General Division

Registry: Western Australia

National Practice Area: Commercial and Corporations

Sub-area: Regulator and Consumer Protection

Number of paragraphs: 56

Date of hearing: 21 May 2024

Counsel for the Applicant: Mr RD McCabe

Solicitor for the Applicant: Soul Legal

Counsel for the Respondent: Mr T Lampropolous SC with Mr HM O'Sullivan

Solicitor for the Respondent: McCabes Lawyers

ORDERS

WAD 22 of 2017

BETWEEN:
KIM RUSSELL BLOOM

Applicant

AND:
LEGEND CORPORATION PTY LTD (ABN 69 102 631 087)

Respondent

ORDER MADE BY:

JACKSON J

DATE OF ORDER:

21 MAY 2024

THE COURT ORDERS THAT:
1.The respondent has leave to rely on the minute of amended defence dated 6 March 2024.
2.By 4.00 pm AWST on 23 May 2024, the respondent must file and serve the amended defence.
3.The respondent must pay the applicant's costs thrown away by reason of the amendments, if any, in any event.
4.Costs of the respondent's application for leave to rely on the minute of amended defence in the cause.
5.The matter is listed for a case management hearing at 2.15 pm AWST on 24 May 2024.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
(edited from the transcript)
JACKSON J:

The respondent in this proceeding, Legend Corporation Pty Ltd, seeks leave to amend its defence. The applicant, Mr Bloom, opposes leave. The issue is whether the defence, if amended, will introduce new factual issues which will prejudice Mr Bloom in his pursuit of the claim. Among other things, Mr Bloom says that the amendments will put the trial dates in jeopardy. They have been set down for 10 to 28 February 2025.
Background to the relevant issue
The proceeding has a long history. It arises out of events that are said to have taken place on 22 December 2014. The statement of claim alleges that on that day, Mr Bloom was installing Christmas lighting in a carport. According to the statement of claim, he was on a ladder and using his thumb and index finger to fasten a cable tie, known as a Cabac tie, to secure an electrical extension cord to a metal roof baton.…

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.

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Details

Case: [2024] FCA 540
Decision Date: 21 May 2024

CaseChat Overview and Summary

In the case of Bloom v Legend Corporation Pty Ltd (No 2), Legend Corporation applied for leave to amend its defence to the plaintiff's statement of claim. Mr Bloom, the plaintiff, opposed the application. The primary issue was whether the proposed amendments would introduce new factual issues that would prejudice Mr Bloom or risk the trial dates set for February 2025. The proceedings date back to an incident on 22 December 2014, when Mr Bloom was installing Christmas lighting and claims he suffered catastrophic injuries after a cable tie snapped. He asserts that Legend Corporation, which imported the cable ties, breached the Australian Consumer Law by making false or misleading representations about the strength of the cable ties and by failing to ensure they were of acceptable quality and free from safety defects. Legend Corporation, on the other hand, has always disputed the plaintiff's account of events and has argued that the accident occurred because Mr Bloom lost his balance and reached for the electrical extension cord, which led to the cable tie snapping.

The court held that the proposed amendments to the defence, which included more specific explanations for the accident and a case about manufacturing defects, were inherent in the existing pleadings. Given the long history of the proceedings and the ample time remaining until the trial, the court found that Legend Corporation should not be precluded from making these amendments. The court granted the application for leave to amend the defence, emphasising that the amendments were not likely to prejudice Mr Bloom and that the trial dates were not at risk. The court also directed that Legend Corporation must pay Mr Bloom's costs thrown away by the amendments, if any, and the costs of the application itself.

Accordingly, the court ordered that Legend Corporation had leave to rely on the minute of amended defence dated 6 March 2024, which must be filed and served by 4.00 pm AWST on 23 May 2024. The respondent was also required to pay the applicant's costs thrown away by reason of the amendments, if any. The matter was listed for a case management hearing on 24 May 2024 to address the costs of the application. The court's decision was based on the principle that the proposed amendments were consistent with the existing pleadings and that there was sufficient time before the trial to accommodate any changes.

Orders

Orders of the court

1. The respondent has leave to rely on the minute of amended defence dated 6 March 2024.

2. By 4.00 pm AWST on 23 May 2024, the respondent must file and serve the amended defence.

3. The respondent must pay the applicant's costs thrown away by reason of the amendments, if any, in any event.

4. Costs of the respondent's application for leave to rely on the minute of amended defence in the cause.

5. The matter is listed for a case management hearing at 2.15 pm AWST on 24 May 2024.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

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

Finally, the plea of contributory negligence does not add further to the factual issues to be determined. It simply arises out of the earlier allegation that Mr Bloom lost his balance for the reasons put forward by Legend Corporation.Conclusion All in all, given the stage that the proceeding has reached and the length of time until trial, I do not consider that Legend Corporation should be shut out from pleading with specificity an explanation for the accident that was always likely to be raised in light of the present state of the pleadings, or from putting a case about manufacturing defects that has arisen as a result of expert evidence filed relatively recently by Mr Bloom. Leave to rely on the proposed amended defence will be granted. I will hear from the parties as to costs.

Ratio Decidendi

Legal Principle Established

The respondent in this proceeding, Legend Corporation Pty Ltd, seeks leave to amend its defence. The applicant, Mr Bloom, opposes leave. The issue is whether the defence, if amended, will introduce new factual issues which will prejudice Mr Bloom in his pursuit of the claim. Among other things, Mr Bloom says that the amendments will put the trial dates in jeopardy. They have been set down for 10 to 28 February 2025.Background to the relevant issue The proceeding has a long history. It arises out of events that are said to have taken place on 22 December 2014. The statement of claim alleges that on that day, Mr Bloom was installing Christmas lighting in a carport. According to the statement of claim, he was on a ladder and using his thumb and index finger to fasten a cable tie, known as a Cabac tie, to secure an electrical extension cord to a metal roof baton. Mr Bloom claims that the cable tie snapped, causing him to lose his balance and fall. He pleads that he has suffered catastrophic injuries, including tetraplegia. Mr Bloom's claim alleges that Legend Corporation committed various breaches of provisions of the Australian Consumer Law (ACL) (being Schedule 2 to the Competition and Consumer Act 2010 (Cth)), and also that it was negligent. Some of the ACL claims arise out of a representation made on the packaging of the cable ties to the effect that they had a minimum strength of 22.2 kg. This is said to have been false or misleading, and Mr Bloom says he relied on it. Mr Bloom also alleges breach of a statutory guarantee under s 54 of the ACL that the cable ties were of acceptable quality, and breach of a requirement found in s 138 of the ACL to ensure that the cable tie did not have a safety defect. As is described in Bloom v Legend Corporation [2022] FCA 746, Legend Corporation did not manufacture the cable tie. The actual manufacturer appears to have been a Chinese company. But Legend Corporation imported the cable ties into Australia. Due to an extended definition of 'manufacturer' in s 7 of the ACL, Legend Corporation comes within the meaning of that term for the purposes of the ACL claims. Paragraph 11 of the defence has always denied the account of the incident given above. And paragraph 14 has always contained a different account of what happened. From the start, it has been pleaded in the defence that if the accident occurred, it was because Mr Bloom lost balance when standing on the ladder. The defence says that with a view to preventing himself from falling, Mr Bloom reached for and took hold of the electrical extension cord, which was held in place by several cable ties. When this plea was originally advanced, it appears that the understanding of Legend Corporation's legal advisors, at least, was that the cable tie which snapped during the incident was one which was found on the ground of the carport, its head having been detached and difficult to locate. This is said to have informed the way that the matter was originally pleaded. It appears that Mr Bloom's legal advisers, after further forensic work, wished to put a case based on a different cable tie being the one that failed.

File number:	WAD 22 of 2017
Judgment of:	JACKSON J
Date of judgment:	21 May 2024
Catchwords:	PRACTICE AND PROCEDURE - application for leave to amend defence - whether leave would prejudice the applicant - whether trial dates at risk - proceeding commenced around seven years ago - almost nine months until trial - proposed factual amendments inherent in existing pleadings - application granted
Legislation:	Competition and Consumer Act 2010 (Cth) Schedule 2 (Australian Consumer Law) ss 7, 54, 138
Cases cited:	Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 Bloom v Legend Corporation [2022] FCA 746 Caason Investments Pty Ltd v Cao [2015] FCAFC 94; (2015) 236 FCR 322
Division:	General Division
Registry:	Western Australia
National Practice Area:	Commercial and Corporations
Sub-area:	Regulator and Consumer Protection
Number of paragraphs:	56
Date of hearing:	21 May 2024
Counsel for the Applicant:	Mr RD McCabe
Solicitor for the Applicant:	Soul Legal
Counsel for the Respondent:	Mr T Lampropolous SC with Mr HM O'Sullivan
Solicitor for the Respondent:	McCabes Lawyers

ORDER MADE BY:	JACKSON J
DATE OF ORDER:	21 MAY 2024