Capic v Ford Motor Company of Australia Limited (Late Evidence)

[2020] FCA 1117

FEDERAL COURT OF AUSTRALIA

Capic v Ford Motor Company of Australia Limited (Late Evidence) [2020] FCA 1117

File number:

NSD 724 of 2016

Judge:

PERRAM J

Date of judgment:

2 July 2020

Date of publication of reasons:

4 August 2020

Catchwords:

PRACTICE AND PROCEDURE – where Applicant seeks leave to rely on affidavit filed out of time – where relevant evidence had been overlooked – whether adequate explanation for delay given – whether prejudice to the Respondent outweighed

Cases cited:

Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; 239 CLR 175

Cement Australia Pty Ltd v Australian Competition and Consumer Commission [2010] FCAFC 101; 187 FCR 261

Jones v Dunkel (1959) 101 CLR 298

Tamaya Resources Limited (in liq) v Deloitte Touche Tohmatsu (A Firm) [2016] FCAFC 2; 332 ALR 199

Date of hearing:

1 July 2020

Registry:

New South Wales

Division:

General Division

National Practice Area:

Commercial and Corporations

Sub-area:

Regulator and Consumer Protection

Category:

Catchwords

Number of paragraphs:

33

Counsel for the Applicant:

Mr I R Pike SC with Ms F Roughley and Mr P Strickland

Solicitor for the Applicant:

Corrs Chambers Westgarth

Counsel for the Respondent:

Mr C Scerri QC with Ms K Anderson and Mr T Farhall

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:	2 JULY 2020

THE COURT ORDERS THAT:

1.The Applicant is granted leave to rely on the affidavit of David Marston dated 27 June 2020.

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

REASONS FOR JUDGMENT

PERRAM J:

1. The Applicant applies for leave to rely upon an affidavit of Mr David Marston affirmed on 27 June 2020 which is opposed by Ford.  Mr Marston is a motor mechanic.  On 23 April 2018 he was retained by the Applicant’s former solicitors to undertake certain work in relation to her vehicle, a 2012 Ford Focus Sport LW MKII.  His retainer followed orders made by this Court on 17 November 2017 that the Applicant make her car available to Ford for inspection.  The parties agreed that this would take place over five days.  The first four days comprised the period Tuesday 24 April 2018 to Friday 27 April 2018 and the fifth was Saturday 19 May 2018.  At the inspections during the week, Ford had retained Mr Rowan Carter to inspect the vehicle on its behalf.  Mr Carter is a mechanical engineer with experience in the modification, repair and servicing of motor vehicles.  The inspection on Saturday 19 May 2018 involved a valuer rather than Mr Carter.

2. The Applicant’s former solicitors retained Mr Marston to inspect the car both before and after the inspections with Ford.  More importantly, they also retained him to attend during Ford’s inspections.  He was specifically instructed to observe how Mr Carter inspected the vehicle, to note the tests Mr Carter…