Capic v Ford Motor Company of Australia Limited (Further Discovery)
[2019] FCA 1958
•21 November 2019
FEDERAL COURT OF AUSTRALIA
Capic v Ford Motor Company of Australia Limited (Further Discovery) [2019] FCA 1958
File number: NSD 724 of 2016 Judge: PERRAM J Date of judgment: 21 November 2019 Catchwords: PRACTICE AND PROCEDURE – application for further discovery – where proposed discovery categories said to relate to proof of aggregate damages claim – consideration of delay, necessity of documents and impact of further discovery on trial timetable Legislation: Federal Court Rules 2011 (Cth) r 20.11 Date of hearing: 9 October 2019 Date of last submissions: 23 October 2019 Registry: New South Wales Division: General Division National Practice Area: Commercial and Corporations Sub-area: Regulator and Consumer Protection Number of paragraphs: 14 Counsel for the Applicant: Mr I R Pike SC with Ms F Roughley Solicitor for the Applicant: Corrs Chambers Westgarth Counsel for the Respondent: Mr C Scerri QC with Ms K Anderson Solicitor for the Respondent: Allens ORDERS
NSD 724 of 2016 BETWEEN: BILJANA CAPIC
Applicant
AND: FORD MOTOR COMPANY OF AUSTRALIA LIMITED ACN 004 116 223
Respondent
JUDGE:
PERRAM J
DATE OF ORDER:
21 NOVEMBER 2019
THE COURT ORDERS THAT:
1.The parties bring in short minutes of order giving effect to these reasons within seven days.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
PERRAM J:
The application for further discovery will be refused with costs. The proposed further discovery relates to the statistical way the Applicant now wishes to prove her aggregate damages claim. The application is refused for a number of reasons.
First, it is by no means certain that the Applicant will be permitted to prove the group members’ damages using the aggregate method.
Secondly, the Applicant has known for some time that she was going to seek to prove the aggregate damages case using statistical methods. The time to be seeking discovery relating to that statistical case was when that undertaking was launched and not, as has in fact happened, a few weeks before her evidence was due.
Thirdly, it is irrelevant therefore that some of the materials which the Applicant now seeks were revealed in the Respondent’s evidence served in late September.
Fourthly, in any event, the Applicant’s advisers did know about some of that material, especially the changeover decks, because they were referred to in the statement of agreed facts filed in the penalty proceeding (being VID 821 of 2017). The Respondent is correct to submit that this aspect of the Applicant’s submission is disingenuous.
Fifthly, if permitted the supplementary discovery will blow out the timetable insofar as it deals with expert evidence on damages. The discovery will take some time to complete, most likely at least two months. If the Applicant’s expert evidence on aggregate damages is put back two months this will see it being delivered in February 2020. This will put the Respondent’s responsive evidence back to at least April and the Applicant’s reply evidence into May 2020.
Sixthly, this does not suggest that the process can be accommodated. To the contrary, this impact on the timetable will cause any expert conclave to happen on the eve of the trial which is not desirable particularly if the evidence is going to be statistical in nature.
Seventhly, this will also mean that the Applicant’s case on aggregate damages will not be available for the mediation which will render that process much impaired.
Eighthly, I think there is a risk that the possible complexity of the statistical material may mean that the trial dates are in fact imperilled, although I rate this risk at the lower end.
Ninthly, I have fixed this matter for trial twice before and the Applicant’s conduct has twice required it to be aborted. Although the Applicant is not to be punished for what has occurred before, it is relevant in considering what is just in terms of procedure to ask why the parties find themselves in the present quandary. It has, so far as I can see, nothing to do with the Respondent.
Tenthly, the Respondent has already given 16 tranches of discovery between 31 October 2017 and 3 October 2019 at an expense of around $1.8 million. It is entitled to ask when this process will end.
Eleventhly, the class members will still be able to prove their individual losses even if the statistical approach does not proceed. It cannot be said that this discovery is essential.
These matters suggest that the relevance of the material is not certain (because aggregate damages are not certain), that it is burdensome, that it is late and that it is thereby unfair on the Respondent. It cannot be said to be necessary to the resolution of the proceeding as quickly, inexpensively and efficiently as possible as required by r 20.11 of the Federal Court Rules 2011 (Cth). All of this takes place against a backdrop of prolonged procedural delinquency. Whilst I accept that the Applicant’s current advisers have not in any way been party to that delinquency and have performed to the contrary with considerable efficiency under difficult circumstances, the slate is not so readily wiped clean so far as the Applicant is concerned. This class action has legacy issues. One cannot ignore the first few years of this litigation as if it did not happen. The Applicant has had more than her fair share of procedural leniency; it would unfair and unjust for me further to impose on the Respondent in the way the Applicant now seeks. The well has run dry.
The remaining categories in dispute were categories 1, 3, 4, 5 and 6. They are refused with costs. The parties are to bring in short minutes of order giving effect to these reasons within seven days.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram. Associate:
Dated: 21 November 2019
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