Jaycar Pty Limited v Lombardo

[2012] HCATrans 87

[2012] HCATrans 087

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S390 of 2011

B e t w e e n -

JAYCAR PTY LIMITED ACN 000 087 936

Applicant

and

ROSS LOMBARDO

Respondent

Summons

BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 11 APRIL 2012, AT 9.30 AM

Copyright in the High Court of Australia

MR J.E. ROWE:   May it please your Honour, I appear for the applicant.  (instructed by John Carmody & Co Solicitors)

MR D.R.J. TOOMEY:   May it please your Honour, I appear for the respondent.  (instructed by Beilby Poulden Costello)

HER HONOUR:   Yes, Mr Rowe.

MR ROWE:   Your Honour, this is an interlocutory application to amend an application for special leave to add an additional applicant.

HER HONOUR:   Yes.  I think you rely on the affidavit of Mark Lawrence Wolfgang Matulich.

MR ROWE:   Matulich, your Honour.

HER HONOUR:   Matulich.

MR ROWE:   We all have that problem with it, your Honour.

HER HONOUR:   Yes.  Now, I might just inquire, Mr Toomey, is there any objection to any part of that affidavit?

MR TOOMEY:   No, your Honour.

HER HONOUR:   That is your evidence on the application?

MR ROWE:   Yes, it is, your Honour.

HER HONOUR:   Yes.  I do not think, Mr Toomey, you have any evidence?

MR TOOMEY:   I have no evidence, your Honour.

HER HONOUR:   Yes, very well.  Well, I think I understand the basis of the application, Mr Rowe.  I might take up some matters with Mr Toomey.

MR ROWE:   Thank you, your Honour.

HER HONOUR:   Mr Toomey, I think the position is this.  The application for special leave to appeal from the orders of the Court of Appeal brought by Jaycar, it is common ground, is one suitable to be dealt with by a panel on the papers.

MR TOOMEY:   Yes, your Honour.

HER HONOUR:   That application requires an extension of time under the rules, it having been filed about six weeks late.

MR TOOMEY:   Indeed, your Honour.

HER HONOUR:   Jaycar gives some undertaking respecting costs.  I understand there is an issue about that.  This application is sought to cure what is frankly conceded to be an oversight, which is the omission to bring the application also on behalf of the second defendant, the second defendant being in the same interest as the first and jointly liable under the judgment.

MR TOOMEY:   Yes, your Honour.

HER HONOUR:   Now, I appreciate, Mr Toomey, that the respondent’s first line of defence to the application for special leave is the question of the extension of time in the circumstances.

MR TOOMEY:   Yes, your Honour.

HER HONOUR:   But why, in the interests of justice, would one cut Electus out of consideration both of the extension of time and, in the event it was a suitable case to do so, the merits of the application for special leave?

MR TOOMEY:   Your Honour, I have only a couple of very short points to make in response to your Honour’s question.  The first is that the explanation of oversight ought to be considered in light of the earlier affidavit of Mr Matulich which was sworn in support of Jaycar’s application for an extension of time, and that affidavit can be found at page 65 of the application book.

HER HONOUR:   Yes, I have that.

MR TOOMEY:   At paragraph 2 of that affidavit, your Honour, Mr Matulich refers to the application being brought by one of the applicants to the New South Wales Court of Appeal proceedings.  The explanation given to this Court now for the failure to name Electus as an applicant suggests pure oversight on the part of Mr Matulich in naming Electus as an applicant on the application for special leave.  Now, paragraph 2 of the affidavit at page 65 of the application book would suggest that indeed Mr Matulich had turned his mind specifically to the fact that he was not naming both and that the application was being brought on behalf of one only of the defendants in the primary proceedings.  It is a short point, your Honour, and I have not ‑ ‑ ‑

HER HONOUR:   It is a short point and it is rather difficult to fathom the conceivable explanation other than oversight, having regard to the history of this litigation and the circumstances of the parties.

MR TOOMEY:   Yes.  There is one further point I wish to make, your Honour, and that is that Electus was in a slightly different position from Jaycar in the principal proceedings.  Electus was sued as an importer of the goods and an action was brought against Electus under section 74D of the Trade Practices Act concerned with unmerchantable quality.

HER HONOUR:   It being a deemed manufacturer?

MR TOOMEY:   Indeed.  The only statutory defence available to an action under section 74D is provided by section 74D(2).  The point was made before the primary judge that no such defence had been pleaded and that the plaintiff was entitled to judgment in any event.  The point was made again to the Court of Appeal.  Their Honours noted in the Court of Appeal that there was no defence on the part of the importer/deemed manufacturer.  That I do not believe is correct.  The point that was made to the Court of Appeal was that there was no defence pleaded to the 74D claim, so that they are in a slightly different position.  I appreciate, of course, that there was a 75AD claim as well against ‑ ‑ ‑

HER HONOUR:   Indeed, and the contractual claim?

MR TOOMEY:   No, there could not be the contractual claim, your Honour.

HER HONOUR:   Not against Electus, no.

MR TOOMEY:   No.

HER HONOUR:   But there was the 75AD?

MR TOOMEY:   There was the 75AD claim and the plaintiff succeeded on that claim.

HER HONOUR:   How does any of this bear on the issue with which I am concerned today, which is a very limited one, and which is – if I can come back to the most recent affidavit sworn by Mr Matulich – Mr Matulich has not been required for cross‑examination, I do not intend any criticism of that, but the fact is he says it was an inadvertent oversight and it is very – well, you understand, Mr Toomey.

MR TOOMEY:   I do, your Honour.

HER HONOUR:   In the circumstances it is difficult to see why the interests of justice would not favour the grant of the application in order that a panel could then consider the question of the opposition to the extension of time in accordance with the merits of that and of the leave application.

MR TOOMEY:   Yes.  No, I hear your Honour.  May I just inquire of my learned friend, through your Honour, having regard to your Honour’s attitude to this application, whether it is proposed that there will be some further evidence put before the Court on the application for extension of time so far as it concerns Electus as distinct from Jaycar because there is presently no evidence in the affidavit of Mr Matulich that pertains to Electus’s position?

It is true that Mr Matulich deposes to the fact that he acts for both Jaycar and Electus, but the only evidence pertains to his communications with a director of Jaycar and instructions taken from him and conferences had with him.  I just alert my learned friend to the absence of that evidence and it may be that if there is further evidence to be put on by Mr Matulich that it will be the respondent’s position that he would wish to cross‑examine Mr Matulich on his affidavits in support of the extension of time for both.

HER HONOUR:   Well, you hear that, Mr Rowe.

MR ROWE:   Thank you, your Honour.

HER HONOUR:   I am minded, for the reasons that I think are evident from our exchange, to grant the relief claimed in the summons.  Do you require reasons, Mr Rowe?

MR ROWE:   No, your Honour.

HER HONOUR:   Yes.  In this matter I make the following orders:

1.Electus Distribution Pty Limited ACN 000 087 347 be added as an applicant to these proceedings. 

2.Leave be granted to file an amended application for leave to appeal conformably with annexure B to the affidavit of Mark Lawrence Wolfgang Matulich sworn 8 February 2012.

The question of costs.  The applicant seeks to have you pay the costs of and incidental to the summons, Mr Toomey.  What do you say to that?

MR TOOMEY:   I would submit, your Honour, the costs should be costs in the cause on the application ultimately.

HER HONOUR:   Yes.  Mr Rowe?

MR ROWE:   Your Honour, the question of the shortcoming was fairly raised by the other side.  We then sought consent to amend.  The consent was not forthcoming.  The response was, bring an action, bring a summons if you wish to amend.  We brought that summons.  At any time of the issuing of that summons consent could have been forthcoming.  It has not been forthcoming.  Our respectful position is that the application is clearly one that had to be made under the rules.

HER HONOUR:   The distinction that no doubt Mr Toomey seeks to make is between joining Electus as a respondent and, as the rules would inevitably require, Electus’ application to be joined as an applicant.

MR ROWE:   I understand that, but the rules would require, in the circumstances, in my respectful submission, that Electus be an applicant – with applicant all the way – it was the position with Jaycar all the way along and ‑ ‑ ‑

HER HONOUR:   I am not sure that the rules would require it be an applicant.

MR ROWE:   Well, let me put it this way, that it would be desirable that Electus be an applicant rather than a respondent as its true position is hand in glove with that of Jaycar.  In any case, it had to become a party whether the appropriate party was as an applicant.

HER HONOUR:   As I apprehend it, there would have been no objection to joining Electus as a respondent?

MR ROWE:   That is correct.

HER HONOUR:   I think in the all the circumstances the costs of the application today are costs in the special leave application, and I so order.

MR ROWE:   May it please your Honour.

HER HONOUR:   Yes.  I will adjourn.

AT 9.45 AM THE MATTER WAS ADJOURNED