Challis v Ford Motor Company of Australia Pty Ltd; Challis v Ford Motor Company of Australia Pty Ltd - [2023] QDC 193

DISTRICT COURT OF QUEENSLAND

CITATION:

Challis & another v Ford Motor Company of Australia Pty Ltd & another; Challis v Ford Motor Company of Australia Pty Ltd [2023] QDC 193

PARTIES:
CHRISTINE CHALLIS
(First Plaintiff)
AND
BRUCE CHALLIS
(Second Plaintiff)

v

FORD MOTOR COMPANY OF AUSTRALIA PTY LTD
ACN 004116 223
(First Defendant)

AND

MACKAY CITY AUTO GROUP PTY LTD ACN 125 986 503
(Second Defendant)

And

CHRISTINE CHALLIS
(First Plaintiff)
AND
BRUCE CHALLIS
(Second Plaintiff)
v
FORD MOTOR COMPANY OF AUSTRALIA PTY LTD
ACN 004116 223
(Defendant)

FILE NOS:

BD No 813 of 2020 and 4687 of 2019

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

Brisbane District Court

DELIVERED ON:

31 October 2023

DELIVERED AT:

Brisbane

HEARING DATES:

11 and 12 August 2022 and 1 November 2022

JUDGE:

Porter KC DCJ

ORDER:

1.            Proceeding 813/20 be permanently stayed.

2.            Proceeding 4687/19 be permanently stayed.

CATCHWORDS:

PROCEDURE – STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY – INHERENT AND GENERAL STATUTORY POWERS – TO PREVENT ABUSE OF PROCESS – OTHER PARTICULAR CAUSES – where the plaintiffs in both proceedings purchased a Ford Ranger – where around six weeks after purchasing the Ranger a fire started in the engine bay while it was turned off and parked in the garage of the plaintiffs’ home – where the fire caused significant damage to the Ranger and the home – where the Ranger was insured by Youi Pty Ltd and the home was insured by AAI Ltd trading as APIA – where fire investigators for both Youi and APIA inspected the vehicle – where the investigator for Youi removed parts of the battery and various wires and sent them to a metallurgist for further testing – where the fire investigators and the metallurgist produced reports opining that the cause of the fire was an electric fault potentially caused by a defect in the starter motor solenoid – where solicitors for Youi contacted Ford Motor Company of Australia Pty Ltd asserting the plaintiffs’ right to bring a claim in respect of the damage to the vehicle – where Youi authorised the disposal of the battery items prior to commencing proceedings without the defendants having inspected them – where Youi exercising rights of subrogation commenced proceedings against the defendants for damage to the vehicle – where after commencing proceedings Youi authorised the disposal of the Ranger without the defendants having inspected it – whether the prosecution of the proceedings after the disposal of the battery items or the Ranger is an abuse of process – whether the proceedings should be stayed as an abuse of process

INSURANCE – SUBROGATION – where after the disposal of the Ranger, APIA exercising rights of subrogation commenced proceedings against Ford for damage to the plaintiffs’ home – where the proceedings were also brought by the plaintiffs in their own right for damage to their uninsured contents – where neither APIA nor the plaintiffs had any involvement in or knowledge of Youi’s decision to dispose of the battery items or the Ranger – whether the proceedings commenced by APIA exercising rights of subrogation or commenced by the plaintiffs in their own right are an abuse of process as a result of the destruction of the battery items or the Ranger – whether the proceedings should be stayed as a result of any abuse of process

CASES:

Allen v Snyder [1977] 2 NSWLR 685

Arrow Nominees Inc v Blackledge [2000] 2 BCLC 167

Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256

British American Tobacco Australia Services Ltd v Cowell [2002] VSCA 197

Capic v Ford Motor Company of Australia Pty Ltd (2021) 154 ACSR 235

Clark v State of New South Wales (2006) 66 NSWLR 640

Di Carlo v Dubois [2007] QCA 316

Dwyer v Volkswagen Group Australia Pty Ltd [2023] NSWCA 211

Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89

Fuji Xerox Australia Pty Ltd v Lee & Anor [2003] QSC 303

Gill v Ethicon Sarl (No 5) [2019] FCA 1905

Hasler v Singtel Optus Pty Ltd (2014) 87 NSWLR 609

Jacob v Utah Construction and Engineering Ltd (1966) 116 CLR 200

Jagov District Court of New South Wales (1989) 168 CLR 23

Logicrose Ltd v Southend United Football Club Ltd (reported in the Times of 5 March 1998)

McHenry v Lewis [1882] 22 Ch 397

Melbourne Investments Pty Ltd v Myer Holdings Ltd (2017) 53 VR 709

Melco Engineering Pty Ltd v Eriez Magnetics Pty Ltd [2007] QSC 198

Oceanic Sun Line Special Shipping Company Ltd v Fay (1988) 165 CLR 197

Palavi v Radio 2UE Sydney Pty Ltd [2011] NSWCA 264

Ratcliffe v Watters (1969) 89 WN NSW Part 1 497

Sun v He (No 2) [2020] NSWSC 1298

Victoria International Container Terminal Limited v Lunt (2021) 388 ALR 376

Waltonv Gardiner (1993) 177 CLR 378

Wilson v Raffalovich (1881) 7 QBD 553

LEGISLATION:

Competition and Consumer Act 2010 (Cth) Sch 2 s 54, 55, 140, 141

Uniform Civil Procedure Rules 1999 (Qld) rr 149, 150(4), 166, 367

COUNSEL:

In BD No 813 of 2020

K Horsley for the Plaintiffs
E Robinson for the First Defendant
H Blattman KC for the Second Defendant

SOLICITORS:
Ligeti Partners Lawyers for the Plaintiffs
Allens for the First Defendant
Carter Newell Lawyers for the Second Defendant

COUNSEL:

In BD No 4687 of 2019

C Heyworth-Smith KC and S Lane for the Plaintiffs
E Robinson for the Defendant

SOLICITORS:
Mills Oakley for the Plaintiffs
Allens for the Defendant

SUMMARY

INTRODUCTION

THE FACTS

Before the fire
The initial expert investigations

Mr Nystrom’s first report
Mr Cox’s first report and Mr Nystrom’s first update
Mr Pellegrino’s report
Mr Nystrom’s second and third updates and Mr Cox’s second report
Summary of initial investigations

Further events prior to the Youi proceedings

Youi’s internal investigation
Dealings with Ford before the Youi proceedings

The Youi proceedings are commenced
Disposal of the Ranger
Events following disposal of the Ranger
The APIA proceedings
The current applications

EXPERT EVIDENCE AT TRIAL

Mr Cousins first report
Mr Denham’s report
Mr Nystrom’s response to the first Cousins report
Mr Cousins’ second report
Admissibility of Mr Cousin’s evidence
Oral evidence

Mr Cousins
Mr Nystrom
Mr Pellegrino
Mr Denham

Leave to read further affidavit refused

RELEVANT PRINCIPLES

Abuse of process and disposal of relevant material
Curial response to abuse of process

ABUSE OF PROCESS: YOUI PROCEEDINGS

Disposal of the Ranger
Youi’s intention in disposal of the Ranger
Disposal of the battery items

British American Tobacco is not inconsistent with Batistatos
British American Tobacco distinguished
Disposal of battery items an abuse of process

Plaintiffs bound by Youi’s conduct

ABUSE OF PROCESS: APIA PROCEEDINGS

Summary
General principles: subrogation
Plaintiffs bound by Youi’s conduct in Youi proceedings
APIA proceedings an abuse of process by the plaintiffs
APIA’s “what if” contention
If British American Tobacco applied, there is no abuse of process

SHOULD THE PROCEEDINGS BE STAYED?

The centrality of the causation issue
Efficacy of further inspection of the chattels
Inadequacy of photographic record
Expression of opinions as to causation?
The onus at trial
Other relevant evidence
Curial responses short of staying proceedings

CONCLUSION

SUMMARY

The plaintiffs’ Ford Ranger was destroyed by fire on 26 September 2017. The plaintiffs contend that the fire was the result of a defect in the Ranger and sue Ford Motor Company of Australia Pty Ltd (Ford) and Mackay City Auto Group Pty Ltd (Mackay City Autos) in proceedings 813/20 for the value of the Ranger and sue Ford in proceedings 4687/19 for damage to their house resulting from the fire. Different insurers are conducting the two proceedings by subrogation. After commencement of the former claim, the Ranger was disposed of by the plaintiffs’ car insurer before Ford inspected it. Certain parts were also disposed of after notice of the claim was given to Ford. Ford and Mackay City Autos contend in those circumstances that the claim for the value of the Ranger is an abuse of process which calls for the stay of those proceedings. Ford further contends that the claim for damage to the house is also an abuse of process which calls for the same response. For the reasons which follow, I consider that both proceedings should be stayed as an abuse of process.

INTRODUCTION

For purposes of these applications, the following matters are not contentious:
(a)On about 17 August 2017, the plaintiffs, Mr and Mrs Challis, purchased a new Ford Ranger (the Ranger) from Mackay City Autos;
(b)The Ranger was supplied to Mackay City Autos by Ford in about February 2017; and
(c)On 26 September 2017, a fire broke out in the garage where the Ranger was parked causing the destruction of the Ranger and significant damage to the plaintiffs’ home.
The insurer of the Ranger was Youi Pty Ltd (Youi). Exercising rights of subrogation Youi, by the plaintiffs, brought proceedings seeking damages of $52,000 from Ford as manufacturer, and Mackay Autos as seller (proceedings 813/20,[1] the Youi proceedings). Those proceedings were filed (in the Magistrates Court) on 20 November 2018. The insurer of the plaintiffs’ house was AAI Limited trading as APIA (APIA). Exercising rights of subrogation APIA, by the plaintiffs, brought proceedings seeking damages of $498,766.87 from Ford only (proceedings 4687/19, the APIA proceedings). The plaintiffs also sue Ford for their own benefit in the APIA proceedings for $47,702 for uninsured loss of contents of their home. The APIA proceedings were commenced on 20 December 2019.
[1] The Youi proceedings were commenced in the Magistrates Court as M5002/18.
After the fire, experts for each of Youi and APIA inspected the Ranger and in doing so removed some parts and wires considered relevant to the cause of the fire. Those experts provided reports opining on the cause. In about April 2018, prior to any proceedings being commenced, but after a detailed written demand had been made on Ford by Youi, Youi gave instructions for the disposal of some of the parts and wires removed from the Ranger. In about February 2019 , after commencement of the Youi proceedings and before the commencement of the APIA proceedings, Youi gave instructions for the Ranger to be disposed of for salvage. Youi obtained advice from solicitors which authorised disposal prior to doing so. Neither Ford nor Mackay City Autos had inspected the Ranger or the parts and wires at that time.
Ford and Mackay City Autos (the defendants) contend that the disposal of the Ranger and some of the parts and wires by Youi renders the Youi proceedings an abuse of process. Ford advances the same contention in respect of the APIA proceedings. These contentions give rise to the following principal issues:
(a)First, does the disposal of the Ranger and the parts and wires by Youi, in the context in which that occurred, make the pursuit of the Youi proceedings an abuse of process?
(b)Second, if so, is the pursuit of the APIA proceedings also an abuse of process, even if APIA had no part in directing the disposal of the Ranger and the parts and wires;
(c)Third, if the proceedings are an abuse of process, is it possible for there to be a fair trial of the proceedings or should there be a stay of one or both proceedings?

THE FACTS

Before the fire

In about February 2017, Ford supplied the Ranger to Mackay City Autos. On 16 August 2017, the plaintiffs acquired the Ranger from Mackay City Autos. The Ranger was collected by the Challises on that day.[2]
[2] Affidavit of Bruce Challis sworn 19 April 2022 at [9] (First Affidavit of Mr Challis).
On 11 August 2021, Mrs Challis swore an affidavit stating that the Ranger had some accessories added at the request of the plaintiffs, being a towpack, canopy and window tinting.[3] It appears from the affidavit that these modifications were made prior to the plaintiffs collecting the Ranger on 16 August. Although they sound electrically benign (and the consensus of the experts is that the fire was likely caused by an electrical fault), there are electrical works associated with the towpack, and one of the experts considered that work a possible cause of the fire.[4] Mrs Challis further swore that but for those changes, neither she nor Mr Challis “made or caused to be made (by engaging any third party) any modifications to the vehicle”.[5]
[3] Affidavit of Christine Challis sworn 11 August 2021 at [3] (Mrs Challis’ Affidavit).
[4] Report of Marty Denham at [10.7] (Denham Report).
[5] Mrs Challis’ Affidavit at [5].
All the experts who examined the Ranger and provided opinions on the cause of the fire, prior to its disposal, acted based on the evidence by Mrs Challis as to modifications. Indeed, Ford’s expert at trial of the applications (Mr Cousins) also prepared his first report on the same basis. Neither of the experts who inspected the Ranger observed evidence of any other electrical modifications. They assumed the correctness of their instructions.
On 19 April 2022, Mr and Mrs Challis swore that prior to collection of the car, Mr Challis requested that Mackay City Autos install a towpack, canopy and window tinting as well as a tubliner and a 12V rear socket. Mr Challis says of the 12V rear socket:
The 12V rear socket was a socket installed in the tray of the car. We used this to plug in a portable fridge when we purchase perishable goods and had to travel any distance. The fridge was never stored in the tray when not in use.[6]
[6] First Affidavit of Mr Challis at [6].
Mr Challis exhibits an invoice said to relate to the “modification made to the vehicle”. That invoice is dated 12 September 2019, a month after the Ranger was purchased and delivered to the Challises and is issued by the service area of Mackay City Autos. Mr Challis says that there were no further modifications to the Ranger and that the Ranger was never taken to another mechanic for any work to be performed.
There are ambiguities arising out of these later affidavits. It does not appear that all the modifications described by Mr Challis were installed prior to delivery of the ranger. Mackay City Autos’ solicitors instructed that the tubliner and 12V rear socket were recorded in service records not sales records, suggesting that those items were not part of the sale, or at least were not installed at the time of delivery. That tends to be confirmed by the date on the invoice attached to Mr Challis’ affidavit, which post-dates the date of acquisition of the Ranger by some 4 weeks. This is inconsistent, though, with instructions given to Mr Denham (Youi’s expert in this application) who was told that all modifications were made prior to the plaintiffs collecting the Ranger.[7]
[7] Denham Report at [10.2].
Further, the invoice exhibited to the later affidavits does not record supply of the 12V rear socket. The items in that invoice describe the installation of tubliners. Mackay City Auto’s solicitors (Carter Newell) confirmed to Ford’s solicitors (Allens) that the invoice disclosed installation of a 12V rear socket.[8] However, that confirmation must be mistaken. Only Mr Cousins appears to have noted this anomaly.[9]
[8] Affidavit of Belinda Heather Thompson sworn 28 July 2023 at exhibit pg 9 (Thompson Affidavit).
[9] Second Report of Tim Cousins dated 5 May 2022 at [5] (Cousins Second Report).
The timing and method of installation of the 12V rear socket was potentially significant evidence. It seemingly involves the installation of a circuit supply cable which extends right into the engine bay and attaches to the battery. As will be seen, the experts consider the fire likely started in the engine bay due an electrical fault, though the precise fault is uncertain. None of the experts who examined the vehicle before it was disposed of were instructed that a 12V rear socket was installed, or noted its presence, or looked for it when examining the vehicle, or considered its implications for causation of the fire. (It appears for example, that on the day after the fire, Mr Nystrom was informed about all the modifications to the Ranger by Mr Challis, other than the 12V rear socket.)[10]
[10] Report of Murray Nystrom dated 5 October 2017 at pg 9 (Nystrom First Report).
Further, if the 12V rear socket was installed after collection of the Ranger, then the timing of that installation could be central to any inference of causation. The Ranger operated safely for seven weeks without incident. If the 12V rear socket was installed days before the fire, or it was first used at that time, it might become an even greater suspect.
Mrs Challis’ second affidavit does not explain how this matter was overlooked in her first affidavit. Mr Challis does not explain how this was not drawn to the attention of the experts who attended the site. The true position was only disclosed after these applications had been in preparation for some time and required re-briefing of Mr Cousins and briefing of yet another expert, Mr Denham. It is unsatisfactory that I have no explanation for how this was overlooked until April 2022 and no accurate evidence as to the facts relating to this modification.

The initial expert investigations

The fire occurred on 26 September 2017. It was described by Mr Challis.[11] He said he drove the Ranger in the afternoon and parked it at about 4pm in the garage. He and his wife went to bed about 8:10 pm. At about 8.20pm they heard a loud bang. Mr Challis went to investigate and heard noises in the garage. He opened the door and saw flames coming from the engine bay. He noticed the Ranger had moved forward from its parked location. He tried to extinguish the fire but it was too intense. The fire brigade attended. The plaintiffs notified Youi at about 10am on 27 September and presumably notified APIA as well. The first on the scene was Mr Nystrom.[12] He is a forensic fire investigator with Australian Forensic Pty Ltd. He was instructed by APIA.
[11] Affidavit of Bruce Challis sworn on 1 August 2022 (Second Affidavit of Mr Challis)
[12] Perhaps more correctly Nystrøm or Nyström.

Mr Nystrom’s first report

Mr Nystrom inspected the Ranger in situ on 4 October 2017 on APIA’s instructions. He took photographs. He provided his first report on 5 October 2017.
As to the cause, he relevantly concluded:
The fire must have been one that resulted from a fault in the motor vehicle. At this time we have not been able to pin point the result of that fault, though the writer has taken possession of the remains of the battery cable from the positive battery terminal to the starter solenoid and a steel bracket to which it had welded. These are presently being forwarded to a forensic metallurgist for further examination.
That sample also contained a small diameter conductor that was attached to the positive battery terminal, which exhibited melting that appeared to the writer to be the result of the heat of the fire…[13]
[13] Nystrom First Report at pg 2.
As to the vehicle, the Ranger was to be taken to Pickles in Mackay for further examination, including by Youi. He observed:
We would propose that an appropriate approach to the further examination would be that the vehicle be removed to a suitable mechanical workshop where it can be hoisted and an examination can be undertaken with the assistance of a qualified mechanic. That could be undertaken jointly with any expert who might be appointed by the motor insurer.
As the evidence indicates that the fire spread out of the parked vehicle, you may consider it appropriate to advise Ford Motor Company or the dealership as they also may wish to also [sic] inspect or examine the burnt vehicle. We will leave these matters to your consideration.
I note:
(a)Mr Nystrom’s view that the fire started in the car’s engine bay has not been subsequently disputed by any of the many experts;
(b)Mr Nystrom plainly contemplated that other parties with an interest in the cause of the fire in the Ranger would wish to examine the car; and
(c)Mr Nystrom removed parts from the Ranger.

Mr Cox’s first report and Mr Nystrom’s first update

Mr Nystrom sent the battery cable and other parts to Mr Simon Cox, a forensic metallurgist. Mr Cox analysed them and provided a report on 20 October 2017. Mr Cox was not called.
Mr Cox described the parts provided to him in his report at page 2. They comprised the positive battery clamp and attached cables, a portion of a major cable with an attached terminal bolt and a metal bracket (the battery cable items). The report is in technical language. One of the major cables were understood by Mr Cox to be the cable from the battery to the starter motor. Mr Cox concluded, inter alia, that the damage to the starter motor battery cable and the other items suggested that the cause of the fire might be related to a defect in the starter motor solenoid.[14] Mr Cox seemed to be influenced in developing this theory by the fact that the Ranger had moved forwards during the fire, suggesting that the starter motor cranked the engine.
[14] Report of Simon Cox dated 20 October 2017 at pg 3 – 4.
Mr Nystrom provided Mr Cox’s report to APIA under cover of his second report dated 30 October 2017. He summarised Mr Cox’s conclusion more broadly as being that the evidence seemed to indicate that some form of failure occurred at or in the vicinity of the starter motor solenoid. After referring to his discussions with Mr Pellegrino for Youi, he concluded:
Our joint focus at this time is in the area of the starter motor/solenoid, so it would be necessary for the vehicle to be removed from Pickles and taken to a facility where it can be hoisted and the relevant parts removed. We have been in discussion with [Mr Pellegrino] regarding this …They also advise that they would prefer to advise [Ford] so that their representative can be present, obviating any conflict that may later arise if parts were to be removed before Ford have had the opportunity to undertake an examination.

Mr Pellegrino’s report

Mr Pellegrino is a forensic fire investigator. At the time of his inspections he was employed by GKA Investigations Group (GKA). On 5 October 2017 he was instructed by Youi to investigate the fire. He attended the site on 16 October 2017. The Ranger was still in position at that time. He took photographs. He was also provided with Mr Cox’s first report.
On 7 November 2017, Mr Pellegrino provided his report to Youi. He recorded a discussion with Mr Challis in which he was told that modifications to the Ranger comprised a tow pack, tubliner and canopy, with no other modifications made.[15] In his examination of the Ranger he noted that the engagement of the starter motor and the electrical arcing noted by Mr Cox might have been a cause of, or an effect of, the fire. He noted the battery cable items had been sent to him by Mr Cox.
[15] Report of Mark Pellegrino dated 7 November 2017 at [7.5] (Pellegrino Report).
He agreed in Mr Nystrom’s view that the fire started from an electrical malfunction inside the engine bay but that the amount of fire damage was going to make identification of the exact cause difficult. He also observed:
An electrical fault can manifest over time and arc damage or melting is not always a resulting feature. High resistance or hot joints can cause cables or connections to overheat causing the protective PVC cable insulation to ignite, which can spread to nearby combustible materials. High resistance joints can be very difficult to locate unless an obvious point of origin can be established. Some of the electrical components had been removed from the vehicle and the electrical system was extensively fire-damaged and altered before my examination.
As to causation he said:
11.1Mr Challis stated that the fire had originated from the engine bay of the subject vehicle, while it was parked inside the garage.
11.2 At this stage, after considering the available information, I have formed the opinion that the fire to the subject vehicle was caused by an electrical fault inside the engine bay.
11.3 Due to the extensive damage inside the engine bay identifying the physical damage pertaining to the fault has not yet been established. Components of the vehicle had been removed before my examination.
Despite the fire damage he observed, he considered a further inspection was worth undertaking. He agreed there should be a further joint inspection which included the manufacturer of the Ranger. Importantly, he also observed that the battery cable items show that there was an auxiliary cable attached to the positive battery terminal and that further inquiries were required to determine “what was linked to the auxiliary cable, when the cable was installed and who installed it”.[16] This appears to be a reference to the second of the two cables attached to the positive terminal referred to in Mr Cox’s report. Mr Cox’s report does not appear to consider the nature or effect of that auxiliary cable. His metallurgical investigations apparently caused him to focus on the cable running to the starter motor solenoid.
[16] Pellegrino Report at [12.3].
Mr Pellegrino has not given any further report. The further steps Mr Pellegrino recommended do not appear ever to have been carried out.

Mr Nystrom’s second and third updates and Mr Cox’s second report

In Mr Nystrom’s second update he reports he further examined the Ranger at a local mechanical workshop. He said that the solenoid and starter motor (starter motor items) had been removed. There is no evidence that Ford was notified of this examination as suggested by Mr Nystrom and Mr Pellegrino and if not, why not. The starter motor items were sent to Mr Cox. Mr Cox provided a further report.[17]
[17] Second Report of Mr Cox dated 10 May 2018 (Cox Second Report).
That report and Mr Nystrom’s conclusions are set out in Mr Nystrom’s third update dated 1 June 2018 where he relevantly writes:
The second report by Simon Cox & Associates Pty Ltd is attached. The report is technical in nature but, when taken into consideration in the light of the earlier metallurgist’s report, the evidence indicate [sic] a reasonably simple position, that due to a fault in the vehicle, the starter motor became engaged and contacts welded. In consequence, the cable overheated through resistive heating sufficient to cause the ignition of the insulation cable. That, in turn has led to a fire that broke out in the engine bay of the vehicle.
Taking into account the result of our examination of the vehicle and its surroundings shortly after the fire, the evidence attributes the fire origin to the engine of the Ford Ranger, and the cause to an electrical fire.
Conclusion
Origin: the fire in the dwelling of the Insured at Halliday Bay initiated from within the engine bay, consistent with the observations of Mr CHALLIS, who observed flames and sparks coming out from under the bonnet of the engine bay.
Cause: an electrical fault occurred in the engine bay that led to the starter being engaged, resulting in contacts welding and resistive heating to the battery cable and ultimate ignition of ignitable material within the engine bay.
Mr Nystrom does not identify what the fault was, where it occurred nor how. It also appears to continue Mr Cox’s focus on the starter motor. The other auxiliary cable identified by Mr Pellegrino is not considered. Nor is any other possible cause.

Summary of initial investigations

As a result of the above, the state of the investigations as at June 2018 was as follows:
(a)Mr Nystrom had inspected the Ranger in situ and again at a mechanics’ workshop, he had provided a report and two updates, and he had concluded (taking into account Mr Cox’s reports) that the origin of the fire was the engine bay of the Ranger and the cause was an unidentified electrical fault;
(b)Mr Pellegrino had inspected the Ranger on one occasion, he had considered Mr Cox’s first report, he advised further investigations but did not appear to have been instructed to undertake them, and had reached a similar conclusion as Mr Nystrom as to the broad nature of cause of the fire, but could not identify the particular electrical defect;
(c)The Ranger was at Pickles at Mackay, the battery cable items were in Mr Pellegrino’s possession, and the stater motor items appear to have been with Mr Cox; and
(d)None of the experts referred to a 12V rear socket in any report or update and it is reasonable to assume they did not know to look for it. (So much was confirmed in cross examination at trial).

Further events prior to the Youi proceedings

Youi’s internal investigation

Having dealt with the process of investigations following the fire, I now turn to the events involving the insurers, the applicants and their solicitors up to the commencement of the Youi proceedings.
The first person with responsibility for the Youi claim was Mr Leon Haycock. Mr Haycock was an experienced motor vehicle claims assessor. Where a claim involved a vehicle insured by Youi, his role involved broadly three matters: whether the policy responded to a claim, if so whether the vehicle was repairable or should be written off, and whether there might be grounds for recovery from a third party of an insured loss. Where the circumstances of the loss were unusual, such that issues of whether the policy responded and/or whether a third party might be liable for the loss, Mr Haycock could engage an investigator to investigate the circumstances of the loss.
Mr Haycock was allocated the claim by the plaintiffs on 29 September 2017. He concluded the loss was unusual because the Ranger was stationary when the fire occurred, and the Ranger was new. Mr Haycock accepted that even at that early stage, he considered there might be a claim against the third party to recover any loss for which Youi was liable.
He initially instructed GKA Investigations (GKA) to carry out a desktop investigation. That involved GKA reviewing the documentary evidence only. He gave that instruction on about 4 October 2017. On 11 October 2017, GKA informed Mr Haycock that it recommended a physical inspection for possible recovery. Mr Haycock accepted this also referred to recovery against a potential third party. He instruction GKA to carry out the physical inspection. As noted above, Mr Pellegrino inspected the Ranger in situ on 17 October. On 18 October it was transferred to Pickles for storage and Mr Haycock warned Ms Hopkins, a procurement officer for Youi, not to allow the Ranger to be sold until investigations were completed for possible recoveries.
On 7 November 2017, Mr Haycock received the Pellegrino report. Once he received that report, Mr Haycock was satisfied that the policy responded. He presumably advised that the claim be met and had little more to do with the matter until April 2018. Thereafter the management of the matter passed to Youi’s recoveries section.
Once Mr Haycock’s work was at an end, the file passed to the recoveries section at Youi. Ms Hopkins’ involvement thereafter was limited. She was responsible for dealing with third party suppliers to Youi, including Pickles. She was the direct contact for giving them instructions as to the fate of the car, however, she had no role in deciding those instructions. That was apparently a matter for the Youi Recoveries section.

Dealings with Ford before the Youi proceedings

The recoveries section is the in-house department of Youi responsible for management of recovery actions and liaising with external solicitors. In this case, Youi notified Ford of a potential claim by letter from its solicitors, Ligeti Partners (Ligeti), at the latest, by 28 March 2018. On that day Ms Thompson, a senior associate at Ligeti, wrote to Ford. The letter demonstrates that Youi had in mind a case of the kind ultimately advanced from that early date:
We act for Christine Challis on instructions from Youi Pty Ltd in relation to an incident on 26 September 2017 wherein our client’s property and motor vehicle were damage in a fire [sic].
Out client’s vehicle was a 2017 Ford Ranger XLS (registration number XJB) (“the Ford vehicle”). We enclose forensic reports that show the fire was most likely caused as a result of an electrical malfunction, which originated within the engine bay of the Ford vehicle. The forensic evidence has established that the fire occurred within (as opposed to externally to) the Ford vehicle.
Our client seeks to recover from your company, as the manufacturer of the Ford vehicle, the loss and damage, she had suffered as a result of the incident. Our client’s claim against your company is in reliance on Sections 140 and 141 of the Australian Consumer Law (“ACL”). Those provisions impose a liability on the manufacturer of a product which has a safety defect. A product would have a safety defect pursuant to Section 9 of the ACL if their “safety is not such as persons are generally entitled to expect”. Our client purchased the Ford vehicle only a few weeks prior to the incident, and had only driven the vehicle approximately 1,700 kilometres. In addition, the ignition of the Ford vehicle had been off, and the vehicle parked in our client’s garage for approximately 4.5 hours prior to the incident.
Clearly, a person is entitled to expect that such a new vehicle will not spontaneously catch fire.
The Courts have consistently held that it is not necessary to establish the precise mechanism of failure to succeed in a cause of action brought pursuant to the above consumer protection provisions. Notably, we refer you to the case of Batchelder & Anor v Holden Limited [2009] VSC 29. The Victorian Supreme Court in that matter held that the consumer was able to succeed in bringing such a claim without proving the specific nature of a product defect, and that it was for the manufacturer to establish a defence that the defect did not exist at the time of supply.
We enclose our client’s proof of loss documents in support of the total loss of the Ford vehicle. We do not currently hold instructions in relation to our client’s claim for the damage to her property.

The letter attached forensic reports. I infer that meant that Ligeti provided Mr Pellegrino’s report (he was Youi’s expert) along with Mr Nystrom’s reports. So much seems clear given that Mr Cox’s reports were included in Mr Nystrom’s updates and Ford had Mr Cox’s report.
On 5 April 2018, Mr Sullivan, Senior Legal Counsel of Ford, responded to that letter by an email as follows:[18]
I have received your letter of 28 March 2018. Please confirm urgently that both the site where the fire occurred and the vehicle itself are available for inspection by an expert we intend to engage.
[18] Affidavit of Dora Anna Banyasz filed 26 July 2021 at pages 168 to 169 (First Banyasz Affidavit).
On 10 April 2018, he sent a further email stating:[19]
I refer to my email of 5 April 2018 below and note that I have not received a response. Please confirm as a matter of urgency that the evidence has been preserved and is available for inspection by Ford Australia being both the site where the fire occurred and the vehicle itself.
[19] First Banyasz Affidavit at pg 168.
Ms Thompson responded immediately on the same day, writing:[20]
I am currently seeking instructions with respect to whether the incident site has been preserved. In relation to the vehicle, it is still intact and available to be examined by your expert, however we require an undertaking that any testing carried out will be non-destructive.
We will then organise for your expert to attend with a Youi assessor for the purposes of the inspection of the vehicle.
[20] First Banyasz Affidavit at pg 168.

Disposal of the battery items

As of 10 April 2018, the battery items and the starter motor items had been removed from the car. GKA had the battery items. The starter motor items appear to have remained with Mr Cox. Ironically, on the same day that Ms Thompson was writing to Ford, GKA sent an email to Mr Haycock of Youi containing an invoice for work done and a warning, “Please note that with regards to the exhibit we are holding (starter motor cables) storage fees apply every six months unless we receive written advice from you that we can dispose of it.” On 12 April 2018, Mr Haycock responded, informing GKA Investigations, “Please dispose of item in storage (cables)”.[21] The battery items were disposed of. [22]
[21] Affidavit of Dora Anna Banyasz affirmed 3 August 2021 at pg 117 (Second Banyasz Affidavit).
[22] Affidavit of Gabrielle Elise Fergus affirmed 3 August 2021 at GEF-3.
This might seem an odd decision given that the battery items were directly relevant to the apparent cause of the fire and Mr Haycock knew this. Doubly odd, given that at that time, Youi’s solicitors had sent the letter referred to in paragraph [40] and received the request to inspect the car.
Mr Haycock said in his affidavit that when he received the email from GKA, he formed the view that there was no need to hold the battery items because indemnity had been conferred. He went on, somewhat inconsistently, “I did not know there was recovery action in progress or if I did know, I did not think the cables were needed for the recovery”.[23]
[23] Affidavit Div 7 para 15
In cross examination, Mr Haycock accepted he had in contemplation at the time of his initial involvement, that there was the potential for claims against third parties. He said he did not specifically contemplate at the time who the third party might be (though he knew Ford was the manufacturer).[24] It is a little difficult to accept that he did not consider Ford as a potential third party. He accepted later that he knew there was a potential claim against the manufacturer. He must have realised, then, there was a potential claim against Ford. He volunteered that there might also be a claim against the mechanic. That was also an obvious possibility. He also accepted that it might be important to the possible third parties to inspect the battery items and accepted that despite that he made no inquiry about whether the battery items had been inspected by the third parties.
[24] Transcript 1-76.24 and 1-78.
Mr Haycock was an experienced loss assessor. It seems odd that he gave instructions to dispose of the battery items which were, based on the existing reports, relevant physical evidence to a potential third party claim. Further, while not suggesting Mr Haycock was being unhelpful in cross examination, I got the impression he was uncomfortable with his decision with the benefit of hindsight. In my view, the explanation for the instruction to dispose of the items lies in a failure of Mr Haycock to advert to the potential importance of the battery items, especially as the request came out of the blue some time after he had finished his active role in the claim.
Mr Thompson, Mr Haycock’s supervisor, also gave evidence and was cross examined. I did not think his evidence assisted. He certainly was aware at the time of Mr Haycock’s decision that proceedings were contemplated against at least Ford and that inspecting the battery items would have been important evidence for Youi or Ford. He and Mr Haycock both maintained that the decision to dispose of the battery items would have been discussed with him but neither recalled any such discussion. I do not accept it likely that the matter was discussed. The battery items were neither valuable nor bulky and likely seemed insignificant to Mr Haycock. An experienced subordinate does not always go to a superior, even if strictly speaking they should. If there was a discussion, it was brief.

Further correspondence about inspection

On 19 June 2018, Ms Thompson followed up with Mr Sullivan in relation to his 10 April request to inspect.[25] No mention was made of the disposal of the battery items, though there is no evidence Ms Thompson knew that had occurred. Mr Sullivan responded, confirming that Ford did intend to inspect the vehicle. On Friday 22 June 2018, Ms Peeler of Ford sent Ms Thompson an email stating, relevantly:[26]
…I can confirm…Ford’s intention to inspect the vehicle in question.
Can you please let me know the current location of the vehicle so that we can arrange some possible dates for travel…
We note that some parts and wiring were removed from the vehicle during the investigation process and sent to forensic metallurgist Simon Cox for inspection…Ford will also require these parts to be made available for the inspection please…
[25] First Banyasz Affidavit at pg 167.
[26] First Banyasz Affidavit at pg 166 to 167.

On 27 June 2018, Ms Thompson replied:[27]
Dear Catherine,
I am currently liaising with my client with respect to the inspection date. Please be advised that any inspection will be on the basis an undertaking is given that the testing will be non-destructive, and carried out with a Youi Assessor in attendance.
Below is a link containing photographs taken by GKA investigations.
[link]
Murray Nystrom and Simon Cox were not engaged by my client but by APIA, and therefore recommend you contact them direct to obtain further information or items.
[27] First Banyasz Affidavit at pg 166.
There was an exchange about the efficacy of the link, then apparently no further contact from Ford for a month. Ms Thompson emailed Ms Peeler again on 29 July 2018:[28]
[28] First Banyasz Affidavit at pg 165. I note that Mackay City Auto did not adduce evidence of the report referred to by Ms Thompson, though there might not be such a report. Perhaps Mackay City Auto was referring to the reports already obtained.
Hi Christine,
I am awaiting the updated dropbox details.
In the interim, my client is prepared to allow your assessor to inspect my client’s vehicle without a Youi assessor provided an undertaking is given that the inspection and testing will be non-destructive.
I have received correspondence from Mackay City Group wherein they advised their assessor has determined the cause of the fire to be a faulty motor solenoid to the vehicle.
My client continues to hold Ford liable for the loss and damage.
My client will allow a further 14 days for your client to obtain a report. My instructions are to commence proceedings against Ford without further notice thereafter.
[underlining added]
Ford did not obtain a report in the 14-day time period provided. Nor is there any evidence I could locate of any communications from Ford between the 29 July 2018 letter and the issue of proceedings by Youi.

The Youi proceedings are commenced

Youi made good on its warning in its 29 July 2018 letter by issuing proceedings against Ford and Mackay City Autos on 28 November 2018 in the Magistrates Court of Queensland, seemingly without further notice.
Youi’s pleading as filed has remained unamended. It is consistent with its foreshadowed claim in the 29 July 2018 letter. Relevantly, the plaintiffs allege:
(a)Ford supplied the Ranger to Mackay City Autos, who sold it to the plaintiffs as consumers under the Competition and Consumer Act 2010 (Cth) (CCA) and ACL;
(b)Ford and Mackay City Autos gave statutory guarantees of quality and fitness for purpose and Mackay City Autos gave equivalent warranties in the sale contract;
(c)The Ranger ignited while parked in the plaintiffs’ garage causing damage to the Ranger and the plaintiffs property;
(d)The damage was caused by a “safety defect” in the Ranger and accordingly Ford is liable for that damage pursuant to s. 140 and 141 ACL; and
(e)The damage was caused by a failure to comply with the statutory guarantees by both defendants and accordingly both are liable for the damage.
The statement of claim is not a high example of the pleader’s art:
(a)It has ambiguities in language and logic. For example, why does it plead damage to property and contents when no claim is made for that loss? And exactly what is the breach relied upon in respect of which statutory guarantee?
(b)Merely alleging a safety defect without more is not sufficient in my view, properly to plead the breach by Ford or Mackay City Autos of the statutory guarantees. The plaintiffs’ case is that the cause of the fire was “safety defect”. It does not plead what that defect was. Presumably it was a matter of inference. However, it is an inference which is the essential allegation in the claim. Despite that, the plaintiffs do not plead the facts from which that vital inferred fact arises, contrary to Uniform Civil Procedure Rules 1999 (Qld) r 149(1)(c) (UCPR) (even if r 150(2) does not strictly apply);
(c)The plaintiffs rely on ss. 140 and 141 ACL against Ford, even though those provisions are irrelevant to its claim for damages for loss of the Ranger itself. That has the consequence that the phrase “safety defect” used in the pleading does not have any significance; and
(d)The plaintiffs plead a claim against Ford for breach of the guarantee in s. 55(2) ACL. That provision does give rise to a claim against Ford as a manufacturer. In any event, s. 55(2) is concerned with a “disclosed purpose” or advertised purpose. There is no allegation of any such purpose.
In any event, on my reading of the pleading, the case is that the cause of the fire was a defect in the manufacture of the car, and that fact is to be inferred from the circumstances in which the fire occurred (albeit those are not pleaded).
It seems copies of Mr Nystrom’s report and updates were provided to Ford by early November 2018. It is unclear whether they were provided to Ford with APIA’s knowledge and consent, nor whether they made their way to Mackay City Autos, though that seems likely. At the time, Ford had only received notice of a claim by Youi.
Mackay City Autos filed its defence on 7 January 2019. Mackay City Autos defended the principal allegations against it in paragraphs 7 and 8 of the statement of claim by filling the lacunae in the Youi pleading and positively alleging how the Ranger ignited, seemingly with a view to establishing at trial that the fire was the fault of Ford.
The Mackay City Autos defence alleges relevantly in paragraph 3:
(d)the incident was a consequence of a faulty starter motor solenoid which:
(i) caused the starter motor to crank the engine;
(ii)which sequentially caused the heating of the battery/Starter motor cable sufficient to damage the insulation to allow the cable to short circuit;
(iii) which sequentially caused the ignition of the insulation encasing the cable resulting the fire
(e) …
(f)the incident was the consequence of a manufacturing defect in the Plaintiff’s vehicle for which [Ford] is responsible…
How liability under contractual warranties or the guarantee in s. 54 of acceptable quality is avoided because the defect was a manufacturing defect is unclear. However, Mackay City Autos can and did seek common law and statutory indemnity from Ford for manufacturing defects. The causation analysis advanced by Mackay City Autos seems to adopt the theory of Mr Nystrom but misunderstanding that it was Mr Nystrom’s view that an unidentified fault caused the starter motor to crank, not necessarily a faulty starter motor solenoid (see paragraph [31] above).(Though I suppose it might be based on a further expert report or opinion I have not seen).
Ford filed its defence on 21 January 2019 which, inter alia, put in issue the cause of the fire, though the initial defence contained no positive alternative case. It also pointed out that none of ss 55, 140 and 141 ACL give rise to a claim against Ford.
On 8 February 2019, Mackay City Autos filed an (amended) third-party claim[29] and statement of claim against Ford. Interestingly, it did not specifically plead its causation analysis articulated in its defence to the Youi SOC in its third-party statement of claim. It merely alleges that if the Ranger was defective then Ford breached terms of the dealer franchise agreement and ss 54 and 55 ACL.
[29] The original filed on 7 January 2019 can be ignored.

Disposal of the Ranger

By the end of January 2019, Ford had put the plaintiffs’ causation of the fire in issue and Mackay City Autos had contended Ford was responsible for the fire on a particular causation analysis. By the end of February 2019, Youi had disposed of the car. That came about as follows.
The story begins with Ms Hopkins, referred to in paragraph [38] above. Ms Hopkins’ evidence is important because it provides Youi’s explanation of the process leading to disposal. Ms Hopkins, by her affidavit, explained that she had noted Mr Haycock’s warning that the Ranger was not to be disposed of until investigations for possible recoveries were completed. She said that the automated file system used by Youi prompted her every couple of months on the need to keep the Ranger and that she would then call recoveries to see if Youi still needed to retain the vehicle. She identified examples from February and July 2018 where she inquired and was informed by recoveries that the vehicle was still required. She said each time she inquired until February 2019, she was told to hold onto the car. On 14 February 2019 she sent another email to recoveries asking if she could dispose of the car. The answer came back on 19 February 2019 from ‘Melis01r’ that the Ranger could be released for sale. ‘Melis01r’ referred to Melissa Reagan of the recoveries section.
Before turning to Ms Reagan’s evidence it is useful to finish with Ms Hopkins. She said after the advice from Ms Reagan, she would have used Youi’s direct access to Pickles’ system and advised that the Ranger could be sold. On 26 March 2019, Ms Hopkins received an invoice from Pickles recording that the Ranger had been sold on 19 March for $50. That is the only evidence of the fate of the car. There is no evidence of what became of it after that. Ms Hopkins was not cross examined. I accept her evidence.
Ms Hopkins’ evidence explains that the genesis of the idea of disposing of the Ranger was unconnected with any specific intention in any Youi officer to dispose of the Ranger to frustrate Ford’s investigations of the cause of the fire. Rather, the idea was prompted by an automated managerial system.
Ms Hopkins’ evidence also provides little reason to think that the Ranger is located somewhere else, more or less intact, for Ford to examine. A Ranger sold for $50 which was in the condition of the Ranger in this case is unlikely to have been preserved by the purchaser for long. The likely inference is that any useful parts would have been removed and the carcass recycled or otherwise disposed of. Further, it is very likely the car would not have been carefully stored or moved, and further degradation of any available evidence is highly likely. Youi is the party who caused the Ranger to be sold, and has the commercial relationship with the auction house, it was for Youi to lead any evidence which might suggest the contrary. I reject APIA’s suggestion that the applicants have somehow failed to establish the loss of the opportunity to examine the Ranger.
I now turn to the process between 14 and 19 February 2019 in the recoveries section. The principal witness dealing with these events was Ms Reagan. Ms Reagan swore an affidavit and was cross examined. In her affidavit she says that she is now a solicitor but that in February 2019, she was not admitted and worked in the recoveries team for Youi. For a time she had conduct of a recovery action for the Ranger. She recalled that Youi was seeking recovery from Ford and the dealer. She referred to the query from Ms Hopkins, noting that the procurement team often made such inquiries. She said that at that time, Ligeti had been engaged by Youi. She called a Mr Khouri, as solicitor of that firm, and asked if the Ranger could be salvaged. She said Mr Khouri said he would look at it and let her know. The next day she says she received a letter from Mr Khouri which provided, after a claim summary which identified the claim relating to the Ranger (the February letter):
We refer to your telephone conversation with the writer on 15 February 2019 whereby you queried whether you could dispose of the salvage of the vehicle. The remains of the vehicle are currently being stored at Pickles Auctions.
We were anticipating that TP1 would want to inspect the remains of the vehicle at Pickles Auctions prior to the filing of legal proceedings. Accordingly, prior to legal proceedings being issued we notified TP1 that we would allow 14 days for them to arrange an inspection of the vehicle. We did not receive a response to our correspondence and note that legal proceedings were issued on 14 November 2018 and we are yet to receive notification from TP1 that they would like to inspect the remains of the vehicle.
Accordingly, we believe your office is able to dispose the vehicle [sic] with “clean hands”.[30]
[30] Affidavit of Melissa Reagan sworn on 22 September 2021.
Mr Khouri did not give evidence. Ms Reagan was cross examined. She accepted she would have known as of February 2019 that proceedings had been commenced, that Ford had filed a defence, that Mackay City Autos had filed a Third Party Notice and that this meant the proceeding was contested. She said she approached Ligeti because she understood that generally Youi had to retain all evidence where it could and accepted that if Youi was a defendant, she would want to inspect the evidence, (though she added “in a timely way”).
She accepted that at the time she received the February letter she understood that Ford and Mackay City Autos might still wish to inspect the Ranger. She was referred to the email at paragraph [53] above but said she had not seen that email before. However, she accepted that to her knowledge, as at February 2019, Youi had never communicated to Ford that it would dispose of the Ranger.
Mr Robinson for Ford, then put to Ms Reagan that she had a second conversation with Mr Khouri. There is a diary note of such a conversation. Ms Reagan was unsure if that occurred or not. Mr Robinson put to Ms Reagan that she had a fifteen-minute discussion with Mr Khouri in which various issues were suggested to have been discussed. She did not recall two conversations. Either way, Mr Robinson asked whether various matters had been discussed. The flavour of the cross examination is as follows:
Did you discuss whether disposal of the vehicle might be a contempt of court or an abuse of process? I don’t recall that. I feel like that would have been something I would have recalled. Sounds serious.
…
Did you discuss whether Ligeti or Youi might make contact with Ford or the dealer to see whether they still wished to inspect the vehicle?‑‑‑I do not recall.
Did you discuss any effect that disposing of the vehicle would have on Ford or Mackay City Auto in the proceeding which was on foot?‑‑‑I do not recall.
Did you discuss any benefit which Youi or the plaintiffs would receive from disposing of the vehicle?‑‑‑I don’t recall.
Did you discuss how disposal of the vehicle might affect any future proceedings, for instance, commenced by the home insurer?‑‑‑I do not recall.
I suggest to you that one of the reasons why you did have a conversation of this kind is that you were deeply concerned – having regard to your general understanding that evidence should be retained so that other parties may inspect it, you were deeply concerned that disposing of the vehicle would prejudice Ford or the dealer?‑‑‑No.
And you were concerned that it might be unlawful?‑‑‑No.
Ms Reagan said she did not discuss Mr Khouri’s advice further and took responsibility for informing Ms Hopkins she could dispose of the Ranger. She said she did not harbour doubts as to the correctness of the advice in the letter when she read it. Although Ms Reagan did not recall a telephone call from Mr Khouri, the diary note of that call was tendered. It gives an insight in my view into the thinking which lay behind the February letter:[31]
we think we’ve given TP plenty of notice, they didn’t … [pay up?[32]]
we think we’ve got clean hands
Ok to dispose of vehicle
[31] Affidavit of Belinda Heather Thompson sworn 28 July 2022 at pg 28.
[32] My reading of the handwritten text.

Events following disposal of the Ranger

On 9 May 2019, Ford’s solicitors, Allens, sent an email to Ligeti Partners asking about the location of the vehicle so that it could be inspected.[33] On 13 May 2019, Ligeti Partners responded:[34]
We refer to your email dated 9 May 2019.
Our client’s vehicle has been salvaged and is no longer available for inspection.
In this regard, on 29 July 2018, Ms Celine Thompson of our office emailed Catherine Peeler of your client and notified her that our client is prepared to allow your client’s assessor to inspect our client’s vehicle without an assessor from our client present. Ms Thompson went on to state that a further 14 days would be allowed for your client to obtain a report. We enclose a copy of the correspondence between Ms Thompson and Catherine Peeler for your reference.
Our client did not receive a response from your client and legal proceedings were ultimately issued in November 2018. As our client did not receive further notification from your client with respect to an inspection opportunity, our client salvaged the vehicle.
[33] Affidavit of Dora Anna Banyasz at pg 173.
[34] Affidavit of Dora Anna Banyasz at pg 175.
Allens responded on 19 June 2019. The letter set out the chronology as Allens knew it at that time and, not surprisingly, asserted that the vehicle should not have been destroyed while the proceedings remained on foot.
Ligeti’s response, sent on 27 June 2019, contended that Ford had been given a sufficient opportunity to inspect the vehicle and that the failure of Ford to inspect justified destruction of the vehicle, given the costs of storing a vehicle destroyed by fire.[35] There followed these paragraphs:[36]
[35] First Banyasz Affidavit at pg 182 to 183.
[36] First Banyasz Affidavit at pg 183 to 184.
Other Matters
Our position is that your client has not been prejudiced in any event by reason of the above. It was given an opportunity to arrange an inspection of the vehicle and failed to do so. Further, your client has been provided with three separate reports with respect to the cause of the fire. We are also now able to provide comprehensive images (200+) of the vehicle after the fire, including close up images of the area of fire origin.
These can no doubt be provided to an expert and will therefore allow your client to obtain any additional expert opinion it deems necessary and/or appropriate to assist with its defence of the claim.
We likewise dispute the salvaging of the vehicle limits our client’s ability to convince the Court of causation or otherwise prove our case. We point out that often in product liability claims, particularly those involving catastrophic fires, the physical evidence is destroyed and/or unavailable in any event. Our client need only convince the Court that on the balance of probabilities, the vehicle was the source of the fire. It need not prove the specific nature of any manufacturing fault or failure which caused the fire (we refer you to the authority of Batchelder & Anor v Holden Limited [2009] VSC 29).
In all the circumstances, we advise our client will not discontinue the proceeding against your client and maintains your client is liable for the claimed damages.
The subsequent correspondence takes matters no further, except that Allens discovered the destruction of the battery items and complained about that in similar terms. On 27 August 2019, Ford filed an amended defence in the Youi proceedings in which it articulated an alternative causation analysis for the fire:
(a)By paragraph 3(c), alleging that the Ranger was:
modified after manufacture (not by Ford) by installing additional wiring, including [Mackay Autos] modifying the vehicle before providing it to the plaintiffs by installing a towpack and accompanying trailer wiring;
(b)By paragraph 6(a):
As to paragraph 6 of the SOC, Ford:
(a)denies the allegations in that paragraph because any loss and damage was not caused by the matters pleaded therein but rather, if the fire began in the vehicle rather than externally (which is not admitted) was caused by auxiliary cables and/or wiring which were not installed by Ford.

The APIA proceedings

The plaintiffs issued the APIA proceedings on 20 December 2019. In contrast to the Youi pleading, the APIA statement of claim pleads the cause of the fire:
Cause of the Fire
12.The Fire and the loss and damage which resulted from it (as particularised in paragraph 13 below) occurred because of a defect within the [Ranger’s] engine bay which led to the starter being engaged resulting in:
(a)the contacts welding;
(b) resistive heating to the battery cable; and
(c) the ignition of ignitable material within the engine bay.
Particulars
Report by Simon Cox & Associate Pty Ltd dated 10 May 2018
Report by Australian Forensic Pty Ltd dated 4 June 2018

In my view, this pleading accurately articulates the hypothesis developed by Mr Nystrom. APIA pleaded that Ford breached the statutory guarantees in the ACL. It pleaded alternatively that the fire being caused in the manner alleged was a “safety defect” which entitled the plaintiffs to a remedy under ss 140 and 141 ACL. The APIA pleading pleaded damage from the fire to the House and its contents. It did not bring proceedings against Mackay City Autos.
The APIA proceeding comprises two distinct claims for damages. Paragraph 13 claims the loss and damage to the house and its contents to the extent the plaintiffs were indemnified for that loss by APIA. That is the amount in respect of which APIA is subrogated to the entitlement of the plaintiffs against Ford. That sum is $498,766 (the insured loss). Paragraph 14 claims on behalf of the plaintiffs for loss and damage to the house and contents which was not insured. By its amended pleading filed 21 May 2020, the plaintiffs particularised that component of the claim and claimed $47,702 (the uninsured loss).
Soon after filing the APIA proceedings, Mills Oakley (for APIA) filed an application for the Youi proceedings to be transferred to the District Court and for the proceedings to be heard together. On 24 February 2020, Judge Reid ordered that the Youi proceedings be transferred to the District Court from the Magistrates Court and that the Youi and APIA proceedings be heard together.
On 23 June 2020, Ford filed its defence. It was in substantially the same form as the amended defence filed in the Youi proceedings. It contained the same key allegations as set out in paragraph [78] above (as paragraphs 6 and 10 respectively).

The current applications

Following correspondence in each matter relating to the issue of interrogatories, applications were filed on 23 July 2021 in each proceeding by Ford seeking that the proceedings be placed on the Commercial List and, more controversially, that interrogatories be answered by the plaintiffs and that affidavits be filed explaining the circumstances of the destruction of the Ranger and the battery items. Those applications were heard by me on 4 August 2021. By that time, the respondents had agreed to answer the interrogatories. Mrs Challis’ affidavit of 11 August 2021 at paragraph [7] above appears to have been filed by way of answers to those interrogatories.
On 13 August 2021, I gave judgment on those applications (Challis v Ford Motor Company of Australia Pty Ltd [2021] QDC 177), ordering the respondents to provide affidavits addressing the matters identified by Ford in the schedule to the applications which, broadly, sought clarification of the circumstances surrounding the admitted disposal of the Ranger and the battery items. The affidavits of Ms Reagan, Mr Haycock and Ms Hopkins relied on in these applications were filed pursuant to those orders.
On 11 February 2022, Ford filed applications for each proceeding to be permanently stayed. Mackay City Autos was served and appeared supporting that application in the Youi proceedings. I have already set out the substance and effect of the affidavit evidence of the parties in respect of the initial set of reports on causation obtained soon after the fire. I have done the same in respect of the affidavits and evidence at trial relating to the circumstances of the disposal of the Ranger and the battery items. I have not yet dealt with the expert evidence at trial of the applications. This evidence was primarily concerned with technical aspects informing whether there could be a fair trial of the proceedings despite disposal of the Ranger and the battery items. That evidence comprised the following:
(a)Two expert reports from an expert in fire investigation, Mr Timothy Cousins (11 February 2022 and 5 May 2022). Mr Cousins’ report was prepared without inspecting the Ranger, as by the time of his reports it had been salvaged;
(b)A further report from Mr Nystrom responsive to Mr Cousins’ first report, focussing on the fair trial issues raised by Mr Cousins;
(c)A report from another fire investigation expert, Mr Denham, tendered by Youi. Mr Denham’s report was also prepared without inspecting the Ranger.
Oral evidence was given by each expert, along with Mr Pellegrino, although he did not prepare a further report. It is to that evidence I now turn.

EXPERT EVIDENCE AT TRIAL

Mr Cousins first report

Mr Cousins was briefed with the Cox, Nystrom and Pellegrino reports. He was also briefed with a series of photographs (taken by Mr Nystrom and Mr Pellegrino) and some Ford workshop documents for the Ranger. Mr Cousins was instructed to provide his opinion broadly on the following matters:
(a)The deficiencies if any in the methods or conclusions of previous reports;
(b)The effect of disposal of the battery items or the Ranger itself on Mr Cousins’ ability to express an opinion on the cause of the fire, including what tests can no longer be done and whether the photographs are adequate for the purpose; and
(c)The “most logical explanation” for the cause of the fire.
Mr Cousins’ report is detailed. I summarise its principal relevant aspects as follows.
Mr Cousins expressed the opinion based on photographs that there were two connections added to the positive battery terminal which in his view were unfused: see photograph 8 on page 14. He explained that such connections are a fire risk. It is useful to set out his explanation of this:
[21]The subject (+) Connection to the battery shows two unknown non-factory un-fused electrical connections. One of these is positioned on the battery post tensioning lug (‘Battery Post Tensioning Lug’) shown in Photos 8 & 9 above and below.
[22] Based on the photo 12 above, and applying circuit theory, it is highly likely that the two unknown battery connections onto the (-) Battery Terminal are the associated return paths for the two unknown un-fused connections on the (+) Battery Terminal Photo 8 above.
[23] With the matter set out in the previous paragraph in mind, I draw attention to the Warning in the Ford Body Equipment Manual (Appendix B) pg 52 which makes it clear that these two unfused connections are contrary to the safety advice provided by Ford.
[24]The warning ‘Under no circumstances should any unfused connections be made directly to any of the vehicle’s battery terminals’ is significant for two reasons:
(a)The first is that such connections bypass the battery management system which serves to protect the battery from running flat.
(b)The second and more important reason is that fuses are there to protect the wiring looms from accidental overcurrent conditions that can result in a fire. An unfused connection to the battery should be seen as a clear and present fire risk.
He set out the seven principles for establishing the cause of the fire set out in the National Fire Protection Association Standard 921 (NAFI 921) being to determine:
(a)The area of the fire origin;
(b)The point of fire origin;
(c)The first fuel ignited;
(d)The source of ignition;
(e)The ignition sequence;
(f)The fire spread; and
(g)The root cause.
Mr Cousins addressed the methodological differences he had with the other experts. He expressed no concerns with Mr Pellegrino’s methodology. He articulates at length his opinion as to the deficiencies he identified in Mr Nystrom’s methodology. His principal concern is that Mr Nystrom had evidence in photographs he possessed which showed at least one of the battery connections (which Mr Cousins styled “third party wiring” seemingly to distinguish it from factory wiring) but did not consider the possibility that this caused the fire. He also expressed the opinion, again in some detail, that Mr Nystrom did not consider the safeguards in the starter motor system which made a fault in that system an unlikely cause of the fire.
Mr Cousins also addressed the impact of the disposal of the Ranger and the battery items on his investigation of the cause of the fire. Given the issues in these applications, I need to address the competing opinions on this issue from Mr Cousins and Mr Nystrom in a little detail.
Mr Cousins said that the loss of the evidence impacted each of three stages of the investigation of the cause of the fire. Those three stages were: inspect the Ranger, inspect the parts and test any hypotheses formed.
As to the inspection of the Ranger, he said inability to inspect affected his ability to form a view on the cause in four ways:
(a)First, it affected Mr Cousins’ chances of determining the area and point of origin of the fire because he could not make various observations he describes[37] to identify how the fire moved within the engine bay. Further it affected his ability to consider Mr Nystrom’s views;
(b)Second, inspection would have assisted Mr Cousins in assessing the likelihood of the fire having been caused by third party wiring. He explains two ways such wiring could have caused the fire (wiring by a route which exposed the wire to contact with other parts or wiring being unfused). He then explains the investigation he would have tried to undertake. It is worth setting it out:
In order to include or eliminate the third party wiring as being material to the cause of the fire I would have sought to inspect that 3^rd party wiring along its full length, in particular the condition of the terminations (for example crimped or soldered lug) at the end of the wiring. It is unknown to me whether this wiring formed part of the wiring that was initially removed by Mr Nystrom or whether it remained with the Vehicle at the time it was salvaged. There are eight wire ends that would have been of interest to me (two on the battery positive terminal, two the battery negative terminal, two on one of the unknown devices (positive and negative)). I would also expect Mr Nystrom to have taken photographs of all cable ends of parts removed from the vehicle. Mr Nystrom’s report and photographs only show two of the unidentified cable ends removed from the positive battery terminal. For this reason it is reasonable to expect that the six other cable ends remain with the Vehicle.[38]
(c)Third, inspection of the Ranger would have facilitated his assessment of the opinion of Mr Nystrom as to the significance of the starter motor issue. Again, he gives a detailed explanation of the investigation he’d have undertaken.[39]
(d)Fourth, he opines that inspection might have opened up further avenues of inquiry that he could not determine from the evidence he had.
[37] First Report of Tim Cousins dated 11 February 2022 at pg 41 [76] (Cousins First Report).
[38] Cousins First Report at pg 42 [81].
[39] Cousins First Report at pg 43 [83].
As to the disposal of the battery items,[40] Mr Cousins again made four points:
[40] Although Mr Cousins does not describe these parts in exactly the same terms as Mr Nystrom, it is evident they are the battery items removed from the Ranger on the first occasion and disposed of on Youi’s instruction. And see paragraph 97 of his report.
(a)First, he said that if he had access to the starter motor cable (one of the cables removed as part of the battery items it seems), he would have tested Mr Nystrom (and Mr Cox’s) theory that the stater motor cable was heated over its whole length and that that ignited its insulation by having another metallurgist analyse the cable at multiple points in its length. This would have permitted him to assess the role if any of the starter motor in causing the fire (and see his detailed argument that it was unlikely this occurred in any event in paragraphs 71 to 72 of his first report);
(b)Second, as to the positive battery terminal, he observed that the battery is a source of energy which could cause ignition and needed careful analysis. The positive battery terminals and connections were a necessary part of that analysis. He also observed from photographs some indication of localised heating near the third party wiring he had observed. He said photographs did not replace inspection of the items themselves because:
94.Photographs cannot convey the full detail required to make a full assessment of the Positive Battery Terminal. For example, some detail can only be revealed by microscopic examination, or sampling and chemical analysis.
95.If I cannot physically examine the Positive Battery Terminal then I cannot know whether or not there are other features of significant interest which may be relevant to determining the cause of the fire in the Vehicle.
(c)Third, he opined that disposal of some of the third-party wiring meant he could not analyse its insulation because certain kinds of insulation are not suitable for use within an engine. He explained that though the insulation would have burned up, he could test for chlorides in the wiring remnants.
(d)Fourth, he made again the fourth point noted in paragraph [95](d) above.
He said that photographs of the fire he had seen were not sufficient to determine the cause. He said:
102.Photographs of the Vehicle are far from sufficient to determine the cause of the fire. The three dimensional movement of a fire, trapped initially by the bonnet, requires a three dimensional understanding of the relevant location and potential heat release rates of various engine and electrical components. Two dimensional photographs cannot convey this information.
103. In addition, without physical examination there is no way to trace any of the Vehicle’s wiring, including the 3^rd party wiring, its function and whether it was attached to any devices.
Finally, he opined that the most logical cause of the fire was “that the 3rd party wiring, unprotected by appropriate fuses, short circuited, overheated and started the fire” and that this fire caused the energisation of the starter motor solenoid and engaged the starter motor. Notably he added: while that was a logical explanation, he was unable to provide a firm view without physical inspection of the Ranger.

Mr Denham’s report

One might have thought that there were already enough experts engaged by the time Mr Cousins had delivered his report. At this point, however, the Challis’ affidavits disclosing the 12V rear socket were served. Youi briefed yet another expert, Mr Denham. None of the respondents’ other experts deal with the implications of the 12V rear socket, even though Mr Nystrom filed a further report.
Mr Denham’s report is mercifully brief. He summarises the reports dealt with so far, as well as yet another by a Mr Conway which seemingly was obtained by Ford but not tendered in evidence. (Mr Denham also refers to two reports by Mr Pellegrino, though I am aware of only one report of substance, that referred to in this judgment. Fortunately, nothing seems to turn on this).
Mr Denham opines that the area of origin of the fire was the engine bay based on photographs and Mr Challis and the other experts’ observations of the vehicle. Of more interest is his views as to point of origin and cause.
Mr Denham’s views can be summarised as follows.
(a)First, while the area of origin is evident, the point of origin “cannot be established from the fire patterns due to the severe fire damage within the Engine Bay”.[41] This appears to disagree with Mr Cousins’ assessment in paragraph [95](a) above, though Mr Denham does not address Mr Cousins’ views as to how this might have been done despite the damage.
(b)Second, he considers an electrical failure the only likely cause of the fire, based on acceptance of Mr Challis’ evidence that the car had not been driven for four hours.
(c)Third, he refers to Mr Nystrom’s and Mr Cox’s analysis of the starter motor. Helpfully, he also refers to Mr Cousins’ analysis of the starter motor system, which he accepts. Like Mr Cousins, he considers this evidence equivocal as to cause because the cranking of the starter motor, though it explains the movement of the car, could be the cause of, or an effect of, the fire. He concludes that a form of electrical failure is the only likely cause, however “insufficient evidence is available to identify the specific electrical failure that occurred."[42]
(d)Fourth, Mr Denham turns to what he designates as “non-factory vehicle modifications”. One of the oddities of the trial was that, although Youi sought to tender Mr Denham’s report in full, APIA (who was in the same interest) delivered a list of objections, all of which were conceded by Youi. Some of the objections were considered in more detail, ironically with Mr Robinson, on behalf of Ford, contending for their admissibility. I ruled on those objections.[43] I will summarise the evidence as it was ultimately adduced on this issue.
[41] Denham Report at [9.4.5].
[42] Denham Report at [9.4.14].
[43] See my reasons given at Transcript 2-110 ff.
Mr Denham listed the final list of modifications, including the tow pack, the tubliner and the 12V rear socket. He was instructed, on specific inquiry by him, that all those modifications had been carried out prior to delivery. It appears from the Challis’ affidavits of 22 April 2022, that the modifications were made after delivery (see paragraphs [11] to [15] above). It is unhelpful that Mr Denham was not acting on unambiguous instructions on this issue.
Mr Denham explained that the tow pack or the 12V rear socket were in his view the likely cause of the electrical fault which caused the fire,[44] because both would or could involve a circuit supply cable running through the engine bay to the battery and there was evidence of such cables being attached to the battery.[45] In this respect his focus is like that of Mr Cousins. He thought those modifications the likely cause of the fire because during his professional calling, he becomes aware of recalls for faulty or defective items. He thought it likely that if there was any history of a manufacturing defect causing a fire in Ford Rangers, he would have heard about it.[46]
[44] Transcript 2-121.
[45] Denham Report at [10.7] and [10.8]
[46] Transcript 2-122.
Mr Denham disagreed specifically with two opinions expressed by Mr Cousins:
(a)He is critical of Mr Cousins calling the modifications to the wiring to the battery as 3rd Party wiring because he was instructed that all the modifications were made before delivery. As I have said, that appears to be a position based on ambiguous instructions; and
(b)He impliedly disagrees that inspection of the Ranger or the battery items might have been material because the photographs show that the engine bay suffered extreme damage and that all polymeric material and small wires were destroyed. Further he opines that Mr Nystrom and Mr Pellegrino are experienced and appropriately recorded physical evidence by photographs. He expressly concludes that “further first-hand examination of the Vehicle and its parts is unlikely to have uncovered additional pivotal evidence in this matter”.

Mr Nystrom’s response to the first Cousins report

On 20 April 2022, Mr Nystrom was instructed by APIA to provide a report responding only to those parts of Mr Cousins’ report which related to the effect of disposal of the Ranger and the battery items on investigation of the fire. He was not briefed with Mr Denham’s report. His responsive report was dated 29 April 2022.
Mr Nystrom rejected Mr Cousins’ views as to the effects on his analysis of causation of disposal of the Ranger and the battery items. Mr Nystrom first responds to some methodological criticisms by Mr Cousins. Having read with care the parts of both reports in question, I have concluded that these exchanges do not much assist me. The ultimate point made by Mr Cousins is that Mr Nystrom concluded the cause of the fire was an unspecified electrical fault when it would have been better to seek to identify that fault, considering in particular the possible impact of the so-called 3rd party wiring. In this regard Mr Nystrom said:
In the second question, I am asked to consider paragraph 36.g.ii of Mr Cousins’ report about whether inspection of the vehicle by another expert would have enabled that expert to determine the cause of the “electrical fault”:
4.2.1In my opinion, the cause of the electrical fault that led to the starter operating leading to the fire would not be able to be determined by another expert’s examination of the vehicle due to the fire damage in the engine bay;
4.2.2The vehicle was examined on three occasions of which I am aware. Two of those examinations were undertaken by me and another by Mr Pellegrino…I was not present for Mr Pellegrino’s examination, nor have I reviewed his report. In my opinion, by the completion of Mr Pellegrino’s examination and my two examinations, nothing else remained that would have better determined the cause of the electrical fault that led to the starter operating.

No distinction between Youi and the plaintiffs can be drawn in respect of the consequences in law of Youi’s conduct in the Youi proceedings. Two arguments were advanced to the contrary.
First, it was submitted that the disposals were not an abuse of process because at the time of disposal of the battery items and the Ranger, those chattels belonged in law to Youi by operation of the common law doctrine of abandonment. The submission was that the plaintiffs were not affected by Youi’s conduct in disposing of Youi’s own chattels. In my view, there are two reasons why this argument fails. First, abandonment only arises at the time of full indemnity. It was not clear on the evidence whether that had occurred at the times of the disposals. Nor was it established that the terms of the Youi policy was consistent with that doctrine. Further, it is at least arguable that abandonment is subject to acceptance and it is not established by evidence that any such acceptance occurred.[85]
[85] On this last point see the contention advanced in Submissions of Ford dated 17 October 2022 at [225].
Further, if the proposition is correct, it would permit an insurer exercising equitable rights in the conduct of litigation to dispose of relevant evidence which it acquired through its rights of subrogation, and thereby avoid the impact on the proceedings conducted pursuant to that equitable right. That cannot be correct. It is an argument which seeks to excise by reference to an issue of legal form, the substantive effect of conduct of proceedings pursuant to the equitable doctrine of subrogation. Equity looks to substance not to form. The transfer of legal title by abandonment, if it occurred, was an event which was an incident of the relationship out of which the rights to subrogation arose and are so closely connected to those rights as to be properly considered as acts done by Youi as the subrogated insurer in the conduct of the Youi proceedings.
Second APIA contended that while Youi’s acts bound Youi in the Youi proceedings, they did not bind the plaintiffs. That argument was articulated as follows:
Subrogation does not make one party an agent for the other party for all purposes, such that the conduct of one must be sheeted home to the other. The Defendant would have it that the conduct of Youi should be sheeted home to Mr and Mrs Challis (and therefore to their subrogated home insurer, Apia) because Youi has exercised a right of subrogation. While Youi might stand in the shoes of Mr and Mrs Challis for the purposes of pursuing the litigation, that does not render them responsible for every aspect of Youi’s conduct such that when they are the plaintiffs in completely different litigation seeking to recover different loss, Youi’s conduct should prejudice their ability to continue the proceeding.
This submission might be thought to make two distinct contentions:
(a)The first is the plenary proposition in the first sentence.
(b)The second is a more confined point, being that while the plaintiffs might be bound by Youi’s conduct in the Youi proceedings, they were not bound in completely different litigation seeking to recover different loss.
To the extent I have accurately understood the first contention, I disagree. For the reasons already given, I consider the acts of disposing of the chattels were done in relation to the conduct of Youi exercising rights of subrogation and necessarily bind the plaintiffs. I deal with the second contention next.

APIA proceedings an abuse of process by the plaintiffs

APIA’s second contention is premised on the proposition that the APIA proceeding is “completely different litigation” to recover different loss. In my respectful view, that proposition is incorrect. A comparison of the two pleadings demonstrates that:
(a)The APIA and Youi proceedings advance the same causes of action against Ford: being damages under ss. 271 or 272 ACL for breach of statutory warranty and compensation for loss arising from a safety defect under ss. 140 to 141 ACL;[86] and
(b)The APIA and Youi proceedings articulate the same basis for those claims, being the fire in the Ranger on 26 September 2017; and
(c)Perhaps most compelling, the two proceedings turn on the same principal issue: whether the fire in the engine bay was caused by electrical malfunction for which Ford and/or Mackay City Autos were responsible.
[86] Noting that Youi’s claim for compensation under ss. 140 and 141 ACL appears to be premised on an erroneous understanding of the nature of compensation under those provisions.
Further, the loss claimed is not different loss in any legally relevant sense. The Youi proceedings seek damages for the immediate loss of the Ranger from the fire and the APIA proceedings seek damages for the consequential loss represented by the spread of the fire. The claims might be characterised as being for different heads of loss (though that might be debated), but are effectively for the same loss: being the property loss consequent on the ignition of the fire in the engine bay. To paraphrase a well known aphorism, the proceedings have distinctions, but they are not different. But for the different insurers, the plaintiffs could have brought the claim for the two heads of loss in the same proceeding.
Indeed, the bringing of the two proceedings in respect of the same matter by the same plaintiff is itself an abuse of process. In McHenry v Lewis [1882] 22 Ch 397, the English Court of Appeal recognised that, prima facie, where the same matter is pursued in two different proceedings, the maintenance of both proceedings is vexatious, and the Court will put the plaintiff to an election. That principle is of longstanding.[87] It is arguable that the bringing of separate proceedings by the plaintiffs, albeit explained by the different insurers, is itself an abuse of process on that basis alone.
[87] It was adopted by Justice of Appeal Keane, as his Honour then was, in Di Carlo v Dubois [2007] QCA 316 (at footnote 8).
However, the bringing of the APIA proceedings by the plaintiffs is an abuse of process in another more compelling sense. As I have found, the plaintiffs are bound by Youi’s conduct in the Youi proceedings. The abuse of process arising out of the disposal of the chattels binds the plaintiff in those proceedings, being proceedings for damages flowing from the fire in the Ranger. The only relevant respect in which the APIA proceedings differ from the Youi proceedings is that they were brought after the disposal of the chattels. APIA contends that this engages British American Tobacco, such that, unlike the Youi proceeding, an intention to frustrate Ford must be established before the later APIA proceedings are an abuse of process. Let it be assumed for present purposes that that is correct (notwithstanding my observations about the different approach which should be taken where considering the conduct of a potential plaintiff).
The difficulty is that the APIA proceedings are also proceeding for damages flowing from the fire in the Ranger. The plaintiffs cannot try to avoid the conclusion that its conduct in pursuing Ford for damages flowing from the fire in the Ranger is an abuse of process by bringing a later, second proceeding which seeks damages for the same causes of action arising out of the same facts but after the disposal of the evidence. To split the claims in this manner, even if done because there are two different insurers, is itself an abuse of process because its objective effect is to avoid the abuse of process by the plaintiffs in the earlier proceeding and in respect of the same claims. That is an improper use of the Court’s processes.
Therefore, at the suit of the plaintiffs, the APIA proceedings are in my view an abuse of process. In exercising its rights of subrogation, APIA must take the plaintiffs and the claim as it finds them. The APIA proceedings are an abuse of process by reason of conduct for which the plaintiffs are in law responsible in respect of the Youi proceedings. APIA cannot avoid that conclusion.
I note in passing that not only is APIA bound by the consequences of the plaintiffs’ conduct in the Youi proceeding, but so are the plaintiffs as persons suing for their own benefit in the APIA proceedings for the uninsured home and contents loss. This aspect of the proceedings highlights that there can be no meaningful distinction drawn between the plaintiffs and APIA in the APIA proceedings.

APIA’s “what if” contention

In answer to the proposition that the plaintiffs are bound by Youi’s conduct of the Youi proceedings, APIA posits this “what if” scenario. Let is be assumed that Youi paid out the claim and decided not to pursue Ford and then salvaged the vehicle. In that circumstance, it is argued, the salvage would have been by a “stranger” to the APIA proceeding. APIA argues in that circumstance, the plaintiffs in the APIA proceeding could not be said to be responsible for the salvage of the vehicle. There are two responses to that.
The first is that that is not what happened. The plaintiffs by Youi commenced proceedings, attracting the principles applicable to disposal of relevant evidence in that circumstance. It is of no assistance in analysing this case to posit one different in a material respect.
The second is that APIA’s hypothetical scenario is ambiguous. The relevance of Youi’s conduct in that case depends on the circumstances in which the Ranger is salvaged. If the Ranger was salvaged at a time when it remained the property of the plaintiffs but was held by Youi as bailee investigating the claim, then it would have been disposed of by Youi as agent for the plaintiffs and it would be a situation covered by British American Tobacco (if that case is to be applied). If on the other hand the property had passed to Youi from the plaintiffs, perhaps by the indemnity insurance doctrine of abandonment, a different analysis might arise. Posing hypothetical scenarios raises more questions than it answers.

If British American Tobacco applied, there is no abuse of process

Ford further argued that even if British American Tobacco was found to apply, I should find that the disposal of the Ranger and the battery items were a contempt of Court. I do not find that argument persuasive but it is unnecessary to decide it given my other findings.

SHOULD THE PROCEEDINGS BE STAYED?

I have concluded that both the Youi proceedings and the APIA proceedings are an abuse of process. I have found that the abuse of process arises (indirectly for the APIA proceedings) from the destruction by Youi of both the battery items and the Ranger (hereafter the chattels). The next question to resolve is what the response of the Court ought to be to that abuse of process. As I have already noted, the ultimate question is whether, despite the disposal of the chattels, a fair trial can be had of the Youi and APIA proceedings, with or without conditions.
For the reasons that follow, I do not think a fair trial is possible of either proceeding.

The centrality of the causation issues

In considering whether a fair trial is possible, it is necessary to identify the importance of the issue to which the chattels are relevant. The more important the issue, the more careful the Court must be in assessing the impact of the loss of the chattels on a fair trial. In this case, the chattels could scarcely be of more relevance to the resolution of the issues in dispute in the two proceedings. An analysis of the pleadings demonstrates that the main issue in dispute is the precise electrical fault which caused ignition of the fire.
In the Youi proceedings:
(a)Youi pleads that the fire was the result of a safety defect and the result of a failure to comply with the statutory warranties of acceptable quality and fitness for purpose. It does not plead the cause of the fire, but it is evident the cause will be relevant to whether either proposition can be established;
(b)Ford defends in the Youi proceedings on the basis that, relevantly, if the fire started in the car, it was caused by cables not installed by Ford;
(c)Mackay City Autos defends in the Youi proceedings on the basis that the fire was caused by a faulty starter motor solenoid and was the result of a manufacturing defect for which Ford is responsible;
(d)Mackay City Autos also sues Ford as a third party, presumably on the same causation hypothesis;
(e)Ford defends the third party proceedings on the same basis as it defends the Youi proceedings.
In the APIA proceedings:
(a)APIA pleads a specific causation case (although one which does not plead a specific fault which caused ignition). It pleads that the fire was caused by an electrical fault in the engine bay which caused the starter motor to engage, the contacts to weld, resistive heating of the battery cable and ignition of ignitable material in the engine bay;
(b)Ford denies that allegation and again defends on the basis that the fire was caused by wiring installed by someone other than Ford.
Notwithstanding non-admissions by Ford and Mackay City Autos, there is acceptance by all parties that the fire ignited in the engine bay and that it was caused by some form of electrical fault. The evidence led in this hearing supports the conclusion that the principal issue in dispute in the trial, probably the only significant issue in dispute, will be what electrical fault caused ignition and who was responsible for that fault.
The options on the pleadings, and on the expert evidence, are:
(a)A manufacturing defect of some kind in the Ranger’s electrical system;
(b)A fault in the modification to the factory electrical system made by Mackay City Autos at the time of the supply of the Ranger or after; or
(c)A fault in the modification of the electrical system by a third party, being neither Ford nor Mackay City Autos.
The real issue at trial will be not just whether the fire was caused by an electrical fault which caused ignition in the engine bay, but the more subtle question as to whether such electrical fault was caused by the factory electrical system as manufactured or post-manufacture modifications to that system and if the latter, whether that electrical fault occurred because of error by Mackay City Autos or by some third party (the causation issues).

Efficacy of further inspection of the chattels

All the experts agreed that inspection of the Ranger was an important step to determining the cause of the fire. They could scarcely say anything else. The importance of inspection was demonstrated by the conduct of the experts who had the opportunity to inspect. Mr Pellegrino inspected the Ranger on site because he considered a “desktop” review was not adequate. He also believed that further inspection should occur (despite seeing the fire damage for himself), involving Ford. Mr Nystrom also inspected the Ranger on site. Mr Nystrom arranged a further inspection to obtain parts from the Ranger to test his hypothesis as to the possible cause of the fire.
This latter point dovetails with a point made by Mr Cousins. He explained that the benefit of inspection is not exhausted on just one inspection (in a complex case at least). He explained that repeat inspections are useful in testing hypotheses as to causation. Where an expert is confronted with the subtleties of the causation issues in this case, I accept that it would be a significant potential advantage to determining the likely fault which caused the fire to be able to inspect the vehicle on an on-going basis. This proposition was also not really disputed.
The real question, however, is not whether inspection (or further inspection) of the Ranger was desirable, or good practice, in theory. It is whether inspection of the chattels could have provided useful evidence on the causation issues in practice.
This turns primarily on one issue: whether the Ranger was so badly damaged by the fire that no useful information could have been obtained from further inspection and testing. The answer to that question cannot be absolute because the Ranger is not available conclusively to answer that question. So we are concerned with the probability that further inspection could have provided materially relevant evidence. I am persuaded that there is a real prospect that it could have provided materially relevant evidence. I explain my reasons.
First, while Mr Denham gave evidence supportive of APIA and Youi on this issue, the main joinder of issue was between Mr Nystrom and Mr Cousins. I prefer Mr Cousins’ evidence. His explanations as to what he considered could have been productively done to interrogate the remains of the Ranger, though occasionally tending to the theoretical, were nonetheless persuasive. In contrast, for the reasons I interpolated when reviewing Mr Nystrom’s responses to Mr Cousins’ evidence,[88] I did not find Mr Nystrom’s critique of Mr Cousins views persuasive (except on the chemical analysis point).
[88] See comment variously made between paragraphs [135] to [142] above.
Further, I found Mr Nystrom’s evidence responding to Mr Cousins’ first report to have a slightly defensive flavour. My perception of Mr Nystrom’s approach when he was first investigating the fire is that he was not attuned to the subtleties of the causation issues. I respectfully suggest this might have been because electrical faults were an area in which he was a little less expert than Mr Cousins. That is not a criticism. Experts frequently have different but overlapping skills.
Whatever the reason, my conclusion is that once Mr Nystrom formed the view that the cause of the fire was an electrical fault in the engine bay, he considered the cause of the fire sufficiently identified. Support for that can be found in his lack of interest in the evidence of post manufacture wiring, whether protected by circuit breakers or not. Nothing was said about those matters until Mr Nystrom’s responsive report to Mr Cousins. Notably, Mr Denham’s report and evidence gives reason to doubt that the existence of those circuit breakers provided a full answer to the risk from any post manufacture wiring. Further, my confidence in Mr Nystrom’s analysis is affected by the ambiguity latent in his analysis in respect of the starter motor. In my respectful view, he appears to have focussed on the starter motor solenoid and the starter motor without fully appreciating that the operating of the starter motor could be a cause or an effect of the fire. I think this questionable hypothesis informed his approach to inspection of the Ranger and probably his decisions as to what to photograph, at least in less or more detail.
Further, the persuasiveness of Mr Nystrom’s evidence was affected by the later emergence of the 12V rear socket. He asserted confidently in his responsive report to Mr Cousins’ report that on the completion of his inspections nothing remained that would have better determined the cause of the fire. Except, as it turned out, the existence of a post manufacture electrical modification running, most likely, through the engine bay and quite possibly attached to the battery in an unorthodox manner (as explained by Mr Cousins).
Second, the explanation given by Mr Nystrom (and in less detail) by Mr Denham for why nothing could likely be obtained from the Ranger or its parts is not persuasive. The suggestion is that damage was caused by the intensity of the fire in the engine bay and the debris that fell on the vehicle. However, despite the intensity of the fire, the after-manufacture circuit breakers were still identifiable. It seems likely to me that there is a real prospect that other parts or indicators relevant to causation might have been present. Further, debris can be removed. No-one tried to do so, so it seems speculative to suggest it could not have been done efficaciously. Finally, the debris was presumably not within the body of the vehicle. Wires from, for example, the 12V socket might have been identified which allowed an investigator to work out at least the way that the socket was wired (which I accept could be relevant to causation).

Third, there is the mysterious 12V rear socket itself. Mysterious because despite the owners and the dealer being parties to this litigation, it was only revealed in April 2022. Mysterious because the invoice said to document the work does not do so. Mysterious because Mackay City Autos’ solicitors accepted, seemingly based on the invoice, that the dealer had installed the socket.
The 12V socket demonstrates, in the context of this issue, the prospect for Secretary of Defence Rumsfeld’s unknown unknowns. It is now impossible to know what would have been discovered if the Ranger had been carefully inspected for remnants of the 12V socket and its wiring. However, Mr Denham and Mr Cousins consider it a suspect in the cause of the fire and those opinions are persuasive. What might have been revealed by a further detailed investigation of the Ranger and its parts, in relation to the 12V socket or indeed other presently unknown modifications or wiring? Youi and APIA must contend that the Court ought simply to assume that nothing would have been revealed but I can see no justification for making that assumption. It is inevitable that the disposal of the Ranger has made it now impossible either to discover new potential causes which have been overlooked or to investigate the potential for matters discovered after the disposal to be investigated.
Fourth, the respondents also rely on Mr Denham’s evidence. While I generally accept Mr Denham’s opinions as persuasive, I not persuaded by his firm views on the potential benefit of further inspection. There are two reasons for that.
The first is that I am not persuaded that there was no prospect of material relevant evidence being obtained from the engine bay or indeed the battery items. I have already explained that I did not find Mr Nystrom’s critique of Mr Cousins’ suggestions as to how that might occur persuasive. Further, it is possible that inspection of other parts of the vehicle might have cast light on the cause of the fire: for example the routing of the 12V rear socket wiring.
The second is that he seems to rely in part on the fact that Mr Pellegrino and Mr Nystrom have already inspected the vehicle. However, Mr Pellegrino expected a further inspection and Mr Nystrom’s approach was a little askew in my view for the reasons I have given. In any event, it is not for an expert to give an opinion based on his opinion about the competence of another expert. Putting that to one side, the basis for his confidence relies on the range of photographs. As I will explain, I do not accept that the photographs eliminate the prospect that inspection could have produced material evidence on causation.
Fifth, I emphasise that Pellegrino was one of only two experts who saw Ranger, and he thought further investigations worth taking at the time: see paragraph [28] above. He formed that view when the issue was not contentious. I give that view considerable weight.
Ultimately, as I have said, the question is not whether further opportunities to inspect the Ranger would or would not in fact have provided material evidence on causation. That cannot now be known. The question which I think must be answered is whether there was a real prospect that that could have occurred. I am satisfied that the answer to that question is yes.

Inadequacy of photographic record

I do not accept that the existence of the photographs means that, despite the matters in the previous section, there is no real prospect that material evidence has been lost. That is because:
(a)First, Mr Pellegrino’s photographs were not taken with a view to providing a complete record of all aspect of the vehicle, as was evident from his own evidence. As Mr Cousins frankly conceded, they were a good example of a set of photographs for an initial fire scene investigation. Mr Nystrom’s photographs were undoubtedly useful, but again they were not taken to fully record every aspect of the vehicle.
(b)Second, I accept Mr Denham’s evidence that the limitation with photographs is that they are two dimensional. They are no substitute for being able to inspect the object photographed. All the experts agreed in that.[89]
(c)Third, photographs are undoubtedly useful for analysis away from the site or chattel. However, they can also raise questions which can only be adequately answered by an inspection. This recognises the reality that in a complex causation analysis, the process for determining causation is an iterative one where hypotheses are tested against the evidence.
(d)Fourth, the potential limitation of the photographs is revealed again by the fact that no witness could say definitively from the photographs that the 12V rear socket was present, nor how it was wired.[90]

Expression of opinions as to causation?

[89] See the evidence cited in the Submissions of Ford dated 17 October 2022 at [37] to [43].

[90] See the evidence cited in Ford’s second submission at [44] to [51].

The respondents contend that each of the experts were able to express a view as to the cause of the fire. The corollary of that proposition according to APIA was that this demonstrated that even without the Ranger, there can be a fair trial in which a range of expert opinions can fairly be advanced. I am not persuaded of either proposition.
First, it is notable that neither Mr Pellegrino nor Mr Nystrom nor Mr Denham express an opinion as to the specific fault or mechanism which caused the initial ignition of the fire. In broad terms, all three experts conclude that the fire was caused by an unspecified electrical fault which caused a fire to ignite in the engine bay. This is, from one perspective, an explanation of the cause of the fire. However, it is an explanation which fails to grapple with the causation issues which so acutely arise. None of those experts provide evidence on the cause of the fire which answers the causation issues in these proceedings. Mr Cousins’ opinion is more specific to the so called “third party” modifications but is expressed in terms as comprising the most logical explanation of the fire in the absence of further inspection. It is also notable that Mr Denham almost goes as far, expressing the view that the non-factory modifications are the likely direct cause, but ultimately did not state that as his final conclusion.
Second, the gravamen of the respondents’ submission on this issue was captured in this submission:[91]
If the Defendant cannot lead evidence to the effect that it cannot obtain expert evidence that expresses an opinion about the most probable cause of the fire, it is submitted that the Defendant is unable to establish that a fair trial cannot take place.
[91] APIA’s second submission at [42].
In my respectful view that submission is incorrect. It can be accepted that it is likely that the defendants can obtain expert evidence that expresses an opinion about the cause of the fire. Mr Cousins provides such an opinion. As does Mr Denham. Other experts could be briefed with the photographs, other reports (to the extent they contain relevant facts) and other instructions and asked to provide an opinion based on that evidence. But the question here is whether there is a real prospect that the evidence upon which experts would be asked to opine could be different if the chattels were available for inspection and testing.
This submission raises another issue which is conveniently dealt with now. The respondents submitted that it is common for trials involving the cause of a fire to be conducted on limited evidence. That is a corollary of the destruction wrought by fires. They also relied on the broad propositions at [14] in Justice Chesterman’s observations from Fuji (cited in paragraph [165] above). The wisdom of his Honour’s observations cannot be doubted. However, to my mind they were not intended to communicate that a trial will be fair if evidence from a critical witness is not available because a party has taken active steps to make them unavailable, nor that it will be fair if objects which were available are by deliberate act, obliterated by a party after proceedings commence.
To my mind the correct question is whether the trial has been made unfair as compared to the trial which could have been conducted if a party had not interfered with or destroyed relevant evidence. I have already found that there is a real prospect that inspection could have produced material evidence on causation.

The onus at trial

The legal and evidential onus at trial will be relevant to whether there can be a fair trial of the proceedings for Ford and Mackay City Autos. I refer to paragraph [262] above which sets out the causation issues. It can be seen by reference to those issues that if the onus is on the plaintiffs to prove the cause of the electrical fault, then the unfairness to the applicants is somewhat reduced. The difficulty in establishing the precise cause of the fault would fall substantially on the plaintiffs. They will have positively to establish whether the fault was a manufacturing fault (to succeed against Ford) or a fault in modification work done by Mackay City Autos.
However, the view advanced by the applicants is that the onus in respect of both the statutory warranty claims and the safety defect claims and will lie on Ford and Ford and Mackay City Autos respectively. There are some complexities surrounding the question of onus. However, in my view the analysis set out in paragraph 50 of Ford’s submission dated 4 May 2022 appears correct, especially if one considers the further authorities raised in argument.[92] It did not appear to me that either Ms Heyworth-Smith[93] or Mr Horsley[94] contended to the contrary. The gravamen of their submissions was that there was nothing particularly remarkable in the applicants ultimately bearing the onus to make out the precise cause of the fire. That may be so. However, it does mean that the lost opportunity to discover evidence on the precise cause of the fire is one which is an unfairness that falls on Ford and Mackay City Autos.

Other relevant evidence

[92]As to statutory warranties see Capic v Ford Motor Company of Australia Pty Ltd (2021) 154 ACSR 235 [606] and [741] and Dwyer v Volkswagen Group Australia Pty Ltd [2023] NSWCA 211 [160] and as to the safety defect claims see Gill v Ethicon Sarl (No 5) [2019] FCA 1905 [3358] and [3503]

[93] Submissions Transcript 1-98.16 to .33.

[94] Submissions Transcript 1-112.30 to .45.

Are there other sources of evidence likely to supplement the deficiency arising from the disposal of the Ranger and its parts? There are two possible sources of evidence in that regard: the evidence of the Challises as to what modifications were made and when and the evidence from Mackay City Autos as to whether modifications were made by it and if so when and how. Neither source of evidence meaningfully assists to ensure a fair trial. I have already explained in detail the difficulties in the evidence so far in respect of modifications from both sources. Further, As Ms Blattman KC (who appeared for Mackay City Autos) submitted, it is highly likely that recollection of the kind of details necessary to assist in at least reconstructing exactly what work might have been done and how will have faded by now and there is no suggestion that there is further disclosure to be obtained.[95]
[95] See the detailed submissions in paragraphs [13] and [14] of Ms Blattman KC’s Second Submission for Mackay City Autos dated 17 October 2022.

Curial responses short of staying proceedings

Ford and Mackay City Autos contend that no curial response short of a stay of both proceedings can address the unfairness arising from the disposal of the Ranger and the battery items. Neither APIA nor Youi seriously contended to the contrary. Certainly, no redress can be obtained from Jones v Dunkel inferences in the circumstances of this case, not least because the inference to be drawn would not assist Ford and Mackay City Autos to make out a positive case as to specific causation. I did consider ordering that APIA and Youi could not rely on expert evidence from any expert who had inspected the Ranger. However, all that would do is put all experts in the trial in the same position as Mr Denham and Mr Cousins, being unable to express an opinion on the specific cause based on examination of the real evidence. No other response apart from a stay of both proceedings suggests itself.

CONCLUSION

I order that the Youi and APIA proceedings be stayed. I will hear the parties as to costs.

CITATION:	Challis & another v Ford Motor Company of Australia Pty Ltd & another; Challis v Ford Motor Company of Australia Pty Ltd [2023] QDC 193
PARTIES:	CHRISTINE CHALLIS (First Plaintiff) AND BRUCE CHALLIS (Second Plaintiff) v FORD MOTOR COMPANY OF AUSTRALIA PTY LTD ACN 004116 223 (First Defendant) AND MACKAY CITY AUTO GROUP PTY LTD ACN 125 986 503 (Second Defendant) And CHRISTINE CHALLIS (First Plaintiff) AND BRUCE CHALLIS (Second Plaintiff) v FORD MOTOR COMPANY OF AUSTRALIA PTY LTD ACN 004116 223 (Defendant)
FILE NOS:	BD No 813 of 2020 and 4687 of 2019
DIVISION:	Civil
PROCEEDING:	Application
ORIGINATING COURT:	Brisbane District Court
DELIVERED ON:	31 October 2023
DELIVERED AT:	Brisbane
HEARING DATES:	11 and 12 August 2022 and 1 November 2022
JUDGE:	Porter KC DCJ
ORDER:	1. Proceeding 813/20 be permanently stayed. 2. Proceeding 4687/19 be permanently stayed.
CATCHWORDS:	PROCEDURE – STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY – INHERENT AND GENERAL STATUTORY POWERS – TO PREVENT ABUSE OF PROCESS – OTHER PARTICULAR CAUSES – where the plaintiffs in both proceedings purchased a Ford Ranger – where around six weeks after purchasing the Ranger a fire started in the engine bay while it was turned off and parked in the garage of the plaintiffs’ home – where the fire caused significant damage to the Ranger and the home – where the Ranger was insured by Youi Pty Ltd and the home was insured by AAI Ltd trading as APIA – where fire investigators for both Youi and APIA inspected the vehicle – where the investigator for Youi removed parts of the battery and various wires and sent them to a metallurgist for further testing – where the fire investigators and the metallurgist produced reports opining that the cause of the fire was an electric fault potentially caused by a defect in the starter motor solenoid – where solicitors for Youi contacted Ford Motor Company of Australia Pty Ltd asserting the plaintiffs’ right to bring a claim in respect of the damage to the vehicle – where Youi authorised the disposal of the battery items prior to commencing proceedings without the defendants having inspected them – where Youi exercising rights of subrogation commenced proceedings against the defendants for damage to the vehicle – where after commencing proceedings Youi authorised the disposal of the Ranger without the defendants having inspected it – whether the prosecution of the proceedings after the disposal of the battery items or the Ranger is an abuse of process – whether the proceedings should be stayed as an abuse of process INSURANCE – SUBROGATION – where after the disposal of the Ranger, APIA exercising rights of subrogation commenced proceedings against Ford for damage to the plaintiffs’ home – where the proceedings were also brought by the plaintiffs in their own right for damage to their uninsured contents – where neither APIA nor the plaintiffs had any involvement in or knowledge of Youi’s decision to dispose of the battery items or the Ranger – whether the proceedings commenced by APIA exercising rights of subrogation or commenced by the plaintiffs in their own right are an abuse of process as a result of the destruction of the battery items or the Ranger – whether the proceedings should be stayed as a result of any abuse of process
CASES:	Allen v Snyder [1977] 2 NSWLR 685 Arrow Nominees Inc v Blackledge [2000] 2 BCLC 167 Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256 British American Tobacco Australia Services Ltd v Cowell [2002] VSCA 197 Capic v Ford Motor Company of Australia Pty Ltd (2021) 154 ACSR 235 Clark v State of New South Wales (2006) 66 NSWLR 640 Di Carlo v Dubois [2007] QCA 316 Dwyer v Volkswagen Group Australia Pty Ltd [2023] NSWCA 211 Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89 Fuji Xerox Australia Pty Ltd v Lee & Anor [2003] QSC 303 Gill v Ethicon Sarl (No 5) [2019] FCA 1905 Hasler v Singtel Optus Pty Ltd (2014) 87 NSWLR 609 Jacob v Utah Construction and Engineering Ltd (1966) 116 CLR 200 Jagov District Court of New South Wales (1989) 168 CLR 23 Logicrose Ltd v Southend United Football Club Ltd (reported in the Times of 5 March 1998) McHenry v Lewis [1882] 22 Ch 397 Melbourne Investments Pty Ltd v Myer Holdings Ltd (2017) 53 VR 709 Melco Engineering Pty Ltd v Eriez Magnetics Pty Ltd [2007] QSC 198 Oceanic Sun Line Special Shipping Company Ltd v Fay (1988) 165 CLR 197 Palavi v Radio 2UE Sydney Pty Ltd [2011] NSWCA 264 Ratcliffe v Watters (1969) 89 WN NSW Part 1 497 Sun v He (No 2) [2020] NSWSC 1298 Victoria International Container Terminal Limited v Lunt (2021) 388 ALR 376 Waltonv Gardiner (1993) 177 CLR 378 Wilson v Raffalovich (1881) 7 QBD 553
LEGISLATION:	Competition and Consumer Act 2010 (Cth) Sch 2 s 54, 55, 140, 141 Uniform Civil Procedure Rules 1999 (Qld) rr 149, 150(4), 166, 367
COUNSEL:	In BD No 813 of 2020 K Horsley for the Plaintiffs E Robinson for the First Defendant H Blattman KC for the Second Defendant
SOLICITORS:	Ligeti Partners Lawyers for the Plaintiffs Allens for the First Defendant Carter Newell Lawyers for the Second Defendant
COUNSEL:	In BD No 4687 of 2019 C Heyworth-Smith KC and S Lane for the Plaintiffs E Robinson for the Defendant