Motor Accidents (Compensation) Commission v Toyota Motor Corporation Australia Limited

Case •

[2023] NTSC 65

•

27 July 2023

CITATION:Motor Accidents (Compensation) Commission v Toyota Motor Corporation Australia Limited & Anor [2023] NTSC 65

PARTIES:MOTOR ACCIDENTS (COMPENSATION) COMMISSION

v

TOYOTA MOTOR CORPORATION AUSTRALIA LIMITED

And

TOYOTA MOTOR CORPORATION

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION:  SUPREME COURT exercising Territory jurisdiction

FILE NO:2020-01671-SC

DELIVERED:  27 July 2023

HEARING DATE:  28 April 2023

JUDGMENT OF:  Luppino AsJ

CATCHWORDS:

Practice and Procedure – Pleadings – Principles of pleadings – Court’s discretion to allow non-compliant pleadings – Amendment of Pleadings – Principles applicable to applications for leave to amend pleadings – Factors to be considered – Refusal of leave if the amended pleading is liable to strike out – Courts concerned only with the proper raising of issues – Merits of issues, if arguable are a matter for trial – An arguable case should not be determined summarily.

Practice and Procedure – Strike out of part of a Statement of Claim – Court’s discretion in respect of strike out orders – circumstances where a strike out order should be refused on discretionary grounds.

Competition and Consumer Act 2010 (Cth) ss 54, 138, 271, 272
Federal Court of Australia Act 1976 (Cth) s 31A(2)
Trade Practices Act 1974 (Cth) s 52

Interpretation Act 1978 (NT) ss 55(2), 62A, 62B
Law Reform (Miscellaneous Provisions) Act 1956 (NT) s 12
Motor Accidents (Compensation) Act1979 (NT) ss 5, 38(4), 38(5)

Supreme Court Rules 1987 (NT) rr 13.09(1), 23.02, 23.04(2), 36.01(1), 36.03(b)

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27
Aldebaran Constructing Pty Ltd v Tiwi Islands Regional Council [2021] NTSC 89
ANZ Banking Group Ltd v Turnbull & Partners Limited (1991) 33 FCR 265
Banque Commerciale SA En Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279
Barr Rock Pty Ltd v Blast Ice Creams Pty Ltd [2011] QCA 252
Bialkower v Acohs Pty Ltd (1998) 83 FCR 1
Burke v LFOT Pty Ltd (2000) 178 ALR 161
Burke v LFOT Pty Ltd (2002) 209 CLR 282
Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594
Dorrough v Bank of Melbourne Ltd [1995] FCA 785
Environinvest Ltd v Prescott & Ors; Environinvest Limited v Blackburne Pty Ltd & Ors [2011] VSC 325
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre Ltd (1978) 140 CLR 216
Jonstan Pty Ltd v Nicholson and Ors (2003) 58 NSWLR 223
MacDonnell Shire Council v Miller [2009] NTSC 46
Northern Territory of Australia v John Holland Pty Ltd & Ors [2008] NTSC 4
Olive & Anor v Oceanview Developments Pty Limited & Ors [2023] NTSC 38
Pinson v Lloyds & National Provincial Foreign Bank Ltd [1941] 2 KB 72
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Queensland v Pioneer Concrete (Qld) Pty Ltd [1999] FCA 499
RTA Pty Ltd v Brinko Pty Ltd [2011] NTSC 103
Southern Cross Exploration NL vFire & All Risks Insurance Co Ltd [1985] 2 NSWLR 340
Spencer v Commonwealth (2010) 241 CLR 118
The Commonwealth of Australia v Verwayen (1990) 170 CLR 394
The Owners - Strata Plan No 87231 v 3A Composites GmbH (No 3) [2020] FCA 748
Toyota Motor Corporation v Motor Accidents (Compensation) Commission [2022] NTCA 5
Whelan v John Fairfax & Sons Ltd (1998) 12 NSWLR 148
Wickham Point Development Pty Ltd v The Commonwealth of Australia [2018] NTSC 7
Williamson v Commonwealth of Australia & Ors [2023] NTSC 56

D Pearce, Statutory Interpretation in Australia, LexisNexis, 9th Ed
JC Campbell, ‘Contribution, Contributory Negligence and Section 52 of the Trade Practices Act - Part 1’ (1993) 67(2) Australian Law Journal 87
M Grant, Presidian Legal Publications, Civil Procedure Northern Territory
Northern Territory Legislative Assembly, Parliamentary Debates, 21 February 2007
Supreme Court of the Northern Territory, Practice Direction No 6 of 2009 – Trial Civil Procedure Reforms, 11 June 2009

REPRESENTATION:

Counsel:

Plaintiff:S Fitzpatrick and T Moses

Defendants:D McConnel SC

Solicitors:

Plaintiff:Maria Savvas as Town Agent for YPOL Lawyers

Defendants:Clayton Utz

Judgment category classification:    B

Judgment ID Number:  Lup2304

Number of pages:  42

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Motor Accidents (Compensation) Commission v Toyota Motor Corporation Australia Limited & Anor [2023] NTSC 65
2020-01671-SC

BETWEEN:

MOTOR ACCIDENTS (COMPENSATION) COMMISSION

Plaintiff

v

TOYOTA MOTOR CORPORATION AUSTRALIA LIMITED

First Defendant

And

TOYOTA MOTOR CORPORATION

Second Defendant

CORAM:    Luppino AsJ

REASONS

(Delivered 27 July 2023)

  1. There are two applications before the Court. The first is by the Plaintiff pursuant to rule 36.03(b) of the Supreme Court Rules 1987 (NT) (“SCR”) seeking leave to file and serve an amended Statement of Claim.

  2. The second is by the Defendants pursuant to rule 23.02 of the SCR seeking a partial strike out of the Plaintiff’s Statement of Claim. The paragraphs sought to be stuck out are those which plead a claim based on contraventions of the Australian Consumer Law (“the ACL”).

  3. The evidence on the application of the Plaintiff consists of two affidavits made by the Plaintiff’s solicitor, Anna Ruth Williams. The first was made 28 February 2023 and the second 22 March 2023. The first affidavit sets out correspondence between the parties in an attempt to agree amendments to the Statement of Claim. After a second proposed amended Statement of Claim was provided to the Defendants, agreement could still not be reached.

  4. The second affidavit is in reply to the affidavit evidence of the Defendants and also sets out further correspondence between the parties in a further attempt to agree amendments to the Statement of Claim. A third proposed amended Statement of Claim was provided to the Defendants containing the amendments the Plaintiffs were prepared to make to address the then current concerns of the Defendants. Agreement could still not be reached in respect of those amendments. That last proposed amended Statement of Claim is now the proposed amended Statement of Claim for the purposes of the Plaintiff’s application (“the Proposed ASOC”).

  5. The Defendants relied on the affidavit of the Defendants’ solicitor Mark Cameron Spain made 15 March 2023. Although the Defendants’ written submissions assert that the affidavit responds to the Plaintiff’s application and also supports the Defendants’ strike out application, to the extent that it relates to the latter, that is inadmissible as there can be no evidence on the Defendants’ application by reason of rule 23.04(2) of the SCR.

  6. I reproduce, for reference purposes, extracts of the relevant rules from the SCR. Firstly rules 23.02, and 23.04, 36.01(1) and 36.03.

    23.02Striking out pleading

    Where an endorsement of claim on a writ or originating motion or a pleading or a part of an endorsement of claim or pleading:

    (a)      does not disclose a cause of action or defence;

    (b)      is scandalous, frivolous or vexatious;

    (c)      may prejudice, embarrass or delay the fair trial of the proceeding; or

    (d)      is otherwise an abuse of the process of the Court,

    the Court may order that the whole or part of the endorsement or pleading be struck out or amended.

    23.04Affidavit evidence

    (1)     Omitted.

    (2) On an application under rule 23.02 no evidence shall be admissible on the question whether an endorsement of claim or pleading offends against that rule.

    (3) Omitted.

    36.01General

    (1)For the purpose of determining the real question in controversy between the parties to a proceeding or of correcting a defect or error in a proceeding or of avoiding multiplicity of proceedings, the Court may at any stage order that a document in the proceeding be amended or that a party have leave to amend a document in the proceeding.

    36.03Amendment of pleading

    A party may amend a pleading served by him:

    (a)once before the close of pleadings; or

    (b)at any time, by leave of the Court or with the consent of all other parties.

  7. Next, sections 5, 38(4) and 38(5) of the Motor Accidents (Compensation) Act 1979 (NT) (“MACA”).

    5Abolition of common law rights

    (1)An action for damages does not lie (either at common law or by statute) for the death of, or injury to, a person arising from a motor accident that occurs in the Territory.

    (2)    It is the Legislative Assembly's intention:

    (a) that this section should apply within and outside the Territory; and

    (b)that it should apply outside the Territory to the full extent of the extraterritorial legislative capacity of the Territory.

38Indemnification of the Commission for statutory benefits

(4)    A person (the indemnifier) is liable to indemnify the Commission for statutory benefits paid to another person in relation to death or injury arising from a motor accident if:

(a)the indemnifier was the manufacturer or repairer of the motor vehicle, or one of the motor vehicles involved in the accident; and

(b)a defect in the manufacture or repair of the motor vehicle caused or contributed to the accident; and

(c)the indemnifier would, assuming this Act had never existed, have been liable in damages, in tort or contract, for the death or injury.

(5)    A person (the indemnifier) is liable to indemnify the Commission for statutory benefits paid to another person in relation to death or injury arising from a motor accident if:

(a)the indemnifier is a person (other than the owner or driver of a motor vehicle involved in the motor accident) whose wrongful or negligent act or omission caused or contributed to the accident; and

(b)the indemnifier would, assuming this Act had never existed, have been liable in damages, in tort or contract, for the death or injury; and

(c)the indemnifier is not otherwise liable to indemnify the Commission under this section.

  1. The principles governing the Court’s power to grant leave to amend a pleading are well settled. For that reason, as in the current case, it is usual that the parties are in agreement as to the applicable principles. Nonetheless, I set out a brief summary of those principles for reference and context.

  2. As I said in Wickham Point Development Pty Ltd v Commonwealth of Australia (“Wickham Point”),[1] the SCR endows the Court with a broad discretion to allow amendments to pleadings. Relevant to the current case is the decision of Mildren J in MacDonnell Shire Council v Miller,[2] where his Honour, adopting what was said by Dawson J in The Commonwealth of Australia v Verwayen,[3] set out the approach to be taken on an application for leave to amend pleadings. Relevant to the current case, that provides that an amendment which is liable to strike out will not be permitted.[4] The test to be applied requires determination of whether “..the amendments are so obviously bad in law that it would be futile” to allow them.[5] Overall that means that leave will be refused if the party proposing the amendment would inevitably fail on the pleaded issue as amended.

  3. In assessing the futility of a proposed amendment, the Court is concerned with the proper raising of issues, not the ultimate merits.[6] That a claim may not have much chance of success is not sufficient reason to refuse leave on that account alone.[7] If a case is arguable, the merits should be determined by the judge at trial and the Court should not determine that question on an interlocutory basis.[8]

  4. Clearly, there is an overlap between applications for leave to amend pleadings and the strike out of pleadings particularly where the futility principle applies. The Defendants’ case for strike out of the proposed pleading of the ACL claim could have simply been advanced by opposing leave to amend based on the futility principle and without a separate application. Seeking to strike out paragraphs which cannot form part of the pleaded case pending determination of the Plaintiff’s application for leave to amend results in an awkward and anomalous situation. Where possible, I intend to consider the claims based on contravention of the ACL as part of the Plaintiff’s application for leave to amend, albeit having regard to the futility principle.

  5. The Defendants’ objections to the balance of the proposed amendments were broadly based on non-compliance with various pleading rules. As to the latter, the Defendants broadly say that the paragraphs complained of have not been pleaded in a way which enables the Defendants to plead to the allegations. In other words, that the pleading is embarrassing.

  6. Now follows a summary of the pleading rules which relate to the Defendants’ complaints and I also restate some principles regarding the modern approach of Courts to pleadings challenges derived from recent authorities.

  7. In Aldebaran Constructing Pty Ltd v Tiwi Islands Regional Council (“Aldebaran”),[9] I said that a pleading which does not comply with pleading rules is embarrassing for the purposes of rule 23.02(c) of the SCR. That term encompasses a wide variety of defects and is not limited only to non-compliance with the pleading rules in the SCR. The object of a pleading is to clearly inform the other party of the case that must be met and, in general terms, a pleading that does not satisfy that objective will be embarrassing.[10] Examples of the types of pleadings which are embarrassing, insofar as they are relevant to the current case, are:-

    ·A pleading which does not allege all the material facts necessary to establish the cause of action which a party relies on;[11]

    ·A pleading which pleads, instead of the material facts, the evidence by which those facts will be proved;[12]

    ·A pleading which pleads conclusions;[13]

    ·A pleading which pleads inconsistent allegations unless they are pleaded in the alternative;[14]

    ·A pleading which is too vague and general;[15]

    ·A pleading which is unintelligible or ambiguous;[16]

    ·A pleading which is confusing;[17]

    ·A pleading which lacks a coherent narrative.[18]

  8. Based on modern case management principles, it is now accepted that the Court has a discretion to allow a pleading which might otherwise be non-compliant, provided that the Court is satisfied that proper notice of the case that must be met has been given, whether by the pleadings or extrinsically.[19] That discretion is often utilised to deal flexibly with pleadings which do not strictly comply with the technical pleading rules. Extrinsic matters that can be utilised for this purpose include further and better particulars, the provision of expert reports and lay affidavit evidence in chief and lastly, mediation. The pre-action exchange of information and essential documents and the alternative dispute resolution provided for by Practice Direction 6 of 2009 – Trial Civil Procedure Reforms (“PD6”)[20] can also be taken into account for that purpose.

  9. In my view, a flexible approach to the pleadings issue is appropriate in this case given the nature and the complexity of the proposed claim. That approach does not sit well with many of the submissions made by the Defendants as they adopt an overly strict approach to pleading rules inconsistent with the modern approach.

  10. Before dealing with the Defendants’ specific complaints regarding the Proposed ASOC, I set out a brief summary of the background facts and basis of the Plaintiff’s claim.

  11. The Plaintiff is the equivalent, in respect of all Northern Territory registered motor vehicles, of what is vernacularly referred to as a third party insurer. The entitlement to benefits for persons injured in any motor vehicle accident in the Northern Territory is regulated by the MACA.

  12. A motor vehicle accident occurred in Darwin on 24 April 2017. A Toyota RAV4 motor vehicle manufactured by one or the other of the Defendants (“the RAV4”) was involved in that accident. Ms Gaynor Hill (“the Claimant”) was driving the RAV4. The accident resulted in the deployment of the driver’s side airbag fitted to the RAV4. That airbag was manufactured by the Takata Corporation (“Takata”). Due to a fault with that airbag, metal fragments were propelled into the Claimant’s eye and penetrated her brain with devastating consequences.

  13. Faults generally with airbags manufactured by Takata had been an international issue for some time before that accident and the Defendants, as well as other motor vehicle manufacturers who fitted those airbags tot heir vehicles, had engaged in a program of recalling affected vehicles and replacing the faulty airbags. It is claimed that geographic areas of high heat and humidity, such as Darwin, were particularly susceptible to the fault.

  14. Over time the Plaintiff made payments of statutory benefits to the Claimant and will continue to do so. By the current proceedings the Plaintiff seeks to recover from the Defendants the amounts it has paid to the Claimant.

  15. The Plaintiff’s claim for indemnity is made pursuant to sections 38(4) and (5) of the MACA. Section 38 of the MACA generally gives the Plaintiff a right to indemnity for statutory benefits paid under the MACA against any person who would, were it not for the abolition provided for in section 5 of the MACA, have been liable in damages to a claimant in respect of the motor vehicle accident.

  16. The liability alleged against the Defendants is twofold. Firstly, a putative claim in negligence based on the knowledge of the Defendants concerning the fault with the airbag as well as the failure of the Defendants to sufficiently respond to the dangers posed by the airbags. Secondly, a putative liability for a contravention of the ACL. Success on that second basis depends at least on the Plaintiff establishing that a claim for contravention of the sections of the ACL relied on is a claim “..in tort or contract..” within the meaning of sections 38(4) and (5) of the MACA.

  17. The requirements for a successful claim for indemnity pursuant to section 38(4) of the MACA are firstly, that the indemnifier was the “manufacturer” of a vehicle involved in the accident. Secondly, that a defect in the manufacture caused or contributed to the accident. Lastly, assuming the MACA had not been enacted, the indemnifier would have been “..liable in damages, in tort or contract, for the death or injury”. Although issues were also raised by the Defendants concerning the first requirement, it is the last of those requirements which is the most controversial matter in respect of the ACL component of the claim for indemnity.

  18. The requirements for a successful claim for indemnity pursuant to section 38(5) of the MACA are firstly, that a wrongful or negligent act or omission caused or contributed to the accident. Secondly, and similarly to section 38(4) of the MACA, assuming the MACA had not been enacted, the indemnifier would have been “..liable in damages, in tort or contract, for the death or injury”. Lastly, the indemnifier is not otherwise liable to indemnify under section 38. The same issue as concerns the second requirement in claims undersection 38(4) of the MACA also arises in respect of the second requirement under section 38(5) of the MACA. The third requirement means that the Defendants can only be liable in respect of one or the other of subsections (4) and (5) of section 38 of the MACA and consequently those claims are pleaded in the alternative.

  19. I will first deal with some of the many discretionary considerations proposed by the Defendants. Discretionary factors are relevant as a grant of leave to amend is in the discretion of the Court. In general terms the discretionary factors proposed are not such as would result in refusal of leave to amend. I think for the most part the discretionary factors proposed are unnecessarily raised having regard to the foregoing principles, particularly the possible reliance on alternative options to address pleadings issues. Some are minor and misconceived. For example, a complaint is made that the Plaintiff did not foreshadow the amendments when a discovery application was made and specifically because the Defendants then complained that the Plaintiff was using the discovery application to obtain discovery beyond pleaded issues. Another, and an even more inappropriate consideration, was the complaint about changes to the legal representation of the Plaintiff. The existence of minor or technical defects is not an appropriate basis to refuse leave to amend.[21]

  1. Reference was also made to the comments of Barr J in his reasons on an appeal against an order for discovery.[22] There his Honour commented that the ACL claims were not maintainable. The ACL claims, or the pleading of those claims, were not an issue in the appeal before his Honour and therefore the question was not argued. That was clearly the case as that matter was determined on the papers only and without a hearing. His Honour’s comments were obiter and they did not reflect a concluded view, nor could that have been the case as the Plaintiff did not have an opportunity to be heard. Reliance on his Honour’s comments as a discretionary consideration is therefore inappropriate.

  2. The Defendants also proposed the overall delay in the proceedings as a discretionary factor. That was because the current application is made some three years after the proceedings were commenced. Although ordinarily it could be said that a total restart of the pleading process three years after the issue of proceedings is indicative of an excessive delay, much time was lost following the issue of proceedings due to the necessity to serve the Second Defendant under the Hague Convention. It was not until 16 July 2021, i.e., 15 months after the issue of proceedings, that the Second Defendant entered an appearance.

  3. Another major delay was due to the application by the Plaintiff for discovery and the application by the Defendants for a separate trial of a preliminary point, by applications made 30 November 2021 and 1 December 2021 respectively. The decision in respect of those applications was delivered on 17 May 2022 but then there was the application for leave to appeal referred to above which was not determined until 5 October 2022.

  4. Concurrently there were arguments concerning the costs of the foregoing applications and for the making of the final discovery orders consequent upon those decisions. That final order was made on 30 June 2022 and was amended by consent on 26 July 2022. Discovery involved a very large number of documents so time was required to effect discovery pursuant to those orders. There then followed these current applications, by the Plaintiff’s summons dated 28 February 2023 and that of the Defendants filed 15 March 2023 taking us to the current time.

  5. Overall therefore I do not think that the Plaintiff should be blamed for the delays to date. Much time could have been saved had the Second Defendant given the solicitors engaged by the First Defendant instructions to accept service on its behalf. It beggars belief that the First Defendant, which I believe is a subsidiary of the Second Defendant, did not notify the Second Defendant of these proceedings, or of the progress of the proceedings after the First Defendant was served. I was aware from early directions hearings that the solicitors for the First Defendant had been engaged during the pre-action process required by PD6. However they were not apparently favoured with instructions from the Second Defendant, either for the PD6 process, or to accept service after proceedings were issued. Hence, service abroad was required. Yet, when service on the Second Defendant was finally effected and the Second Defendant entered an appearance, it was represented by the same solicitors as for the First Defendant. As the longest period of delay is attributable to the need to serve the Second Defendant abroad, there is a certain irony in the circumstances in the Defendants raising the delay since issue of proceedings as a discretionary factor in their favour.

  6. With that background I now deal with the Defendants’ more specific complaints with the pleading. Firstly paragraphs 3 and 3B. These are general introductory paragraphs but objection was taken to the definition of ‘Toyota’ in the former and ‘Takata’ in the latter. The objection is that there are multiple entities which share those names and the use of the word ‘Toyota’ to refer to the corporate group is likely to cause confusion. The Defendants say that as the cause of action relied on by the Plaintiff depends on the state of knowledge of ‘Toyota’, it is critical that the state of knowledge of each of the Defendants is pleaded.

  7. Firstly I do not accept that confusion may arise by use of the term ‘Toyota’ in the corporate sense. It is only the reference to the two Defendants that matters and there cannot be any confusion in that respect. Any incidental reference to any other Toyota entity is contextual only. Secondly, I do not accept the need for pleading of knowledge based on the individual entities in the Toyota corporate group in the circumstances of the current case. It is the corporate knowledge which is relevant to the Plaintiff’s case. The Defendants, mainly the Second Defendant, are particularly aware of the knowledge of the entities within the Toyota corporate group. I accept that the applicable pleading principle is not concerned with what an opposing party actually knows, as that party is entitled to know what the pleading party says are the material facts.[23] Generally the state of knowledge of the other party does not relieve responsibility for proper pleading in that respect.

  8. However there is both scope and the need to adopt flexibility in this situation given the peculiar knowledge of the Defendants, mostly the Second Defendant, and the likely near impossible task of the Plaintiff pleading knowledge of multiple entities. I expect that extensive discovery would be necessary before the Plaintiff could plead the level of knowledge which the Defendants seek. That would likely result in a further amended Statement of Claim after that discovery. That would be a curious result given the multiple complaints by the Defendants, which I do not accept in any case, that additional discovery is the motive for the amendments. Flexibility in the pleading process at this stage will avoid that for the present. In addition, I am satisfied that if there was any pleading shortcoming, that could be adequately addressed by use of extrinsic materials, either currently available or which will be provided in due course. To the extent required, I will allow the amendments in those paragraphs in the exercise of the discretion discussed above.

  9. Next, and related to the first complaint, paragraphs 3H, 3I and 3J. The Defendants relied on those paragraphs as an illustration of the problem associated with the pleading of the definition in paragraph 3. I agree with the Plaintiff that the reference to those terms in those paragraphs is for context concerning the actions taken by Toyota group entities to address the fault. I cannot see why it would be necessary to plead which specific Toyota group entity was involved in respect of the activities referred to therein. In my view, the pleadings sufficiently set out the material facts required for the Plaintiff’s cause of action and sufficient for the Defendants to be able to plead in response.

  10. A related complaint is made in respect of paragraphs 3N, 3O, 3Q, 3U, 3V, 3W, 3Y, and 3ZA. However in each case the reference to Toyota in those paragraphs is part of the expression “Toyota vehicles” and the Defendants cannot genuinely claim this to be vague or ambiguous. It does not refer to the Defendants per se and broadly refers to the specific airbag fault generally associated with various vehicles known by the brand name Toyota. It is disingenuous for the Defendants to claim an inability to plead to those paragraphs because of the reference to the word ‘Toyota’ without specifically identifying the precise entity.

  11. Next is what I consider to be an unnecessary objection with respect to paragraph 3E. That paragraph pleads that the RAV4 was defective because it was fitted with a Takata driver’s side airbag module which contained the relevant defect. The particulars to that paragraph then go on to refer to that vehicle being equipped with airbags, i.e., the plural. The particulars also allege that multiple RAV4 vehicles within a specified date range were also equipped with those defective airbags. The objection is that the particulars expand the allegation of the defect to multiple airbags in multiple vehicles.

  12. Although the particulars are expressed in the plural, essentially the pleading does nothing more than to allege that the airbag which caused the injury to the Claimant was of the type referred to in the particulars, as were all the other airbags in the RAV4. It does not change the case that has to be met as that unambiguously is with respect to the actual driver’s side airbag in the RAV4. In any case, that could not impact on the pleading by the Defendants as they can simply decline plead to the particulars.[24]

  13. Having said that, the second sentence in the particulars to paragraph 3E cannot stand as a particular in my view. That states that the defective airbags were fitted to a range of RAV4 model vehicles, the range being identified by production dates and the Vehicle Identification Numbers. That appears to be an allegation of a material fact rather than a particular. Pleading of material facts in particulars is not permitted.[25] If it is not a material fact, it does not appear to be a proper particular in any case. Most likely it is mere evidence. Subject to that, that part of the amendment will be disallowed but that the Plaintiff will be given leave to re-plead that as, and if so, advised.

  14. Paragraph 3E has common features with paragraphs 3F and 3O and the Defendants complain that those paragraphs simply contain generalised references to the entirety of airbag inflators fitted to airbags manufactured by Takata and fitted to vehicles worldwide by multiple manufacturers, including the Second Defendant. The Defendants say this has nothing to do with the driver’s side airbag fitted to the RAV4.

  15. The Defendants’ submission misses the point. I read those paragraphs as setting the context to support the allegations of knowledge of the Defendants in respect of “..Toyota vehicles in Australia..” as a whole. Although that refers to more than just the RAV4, the claim in negligence concerns the sufficiency of the recall of Toyota vehicles fitted with the defective airbags. The knowledge of the Defendants and the actions taken by the Defendants, not limited to Australia and not just limited to the RAV4, is a key aspect of that. Those paragraphs do not change the essential allegation in respect of the defective airbag which caused the injury to the Claimant.

  16. The Defendants also submit that if this amendment is allowed it would entitle the Plaintiff to further discovery. I do not understand that to be a submission that further discovery is the motive, and an improper motive, for the amendment. However, I do not see how the Defendants could substantiate that as that is purely a matter of opinion. Discoverability of documents flows naturally from the pleadings process. Additional discovery may legitimately be required if the amendment is allowed. That is not an appropriate basis for refusing the amendment.

  17. Submissions were made by the Defendants in composite form in respect of paragraphs 3F through to 3ZA and it is convenient to deal with them on the same basis. The complaints, in summary are firstly, that they plead matters which are not material facts for the pleaded cause of action. Secondly, that they plead evidence rather than material facts. Lastly, that the consequence of the amendments will be further discovery which the Defendants submit will result in further amendments “ad infinitum” and hence constitute an abuse of process.

  18. Unlike in the circumstances referred to in paragraph 42 above, the last basis of objection is an unsubstantiated and serious allegation of improper motive made against the Plaintiff. That is inappropriate in a bare submission without any basis other than apparent belief or opinion. The allegation is so speculative as to be meaningless. I disregard it.

  19. The basis for the broader submission appears to be that the Defendants conclude that the claim only concerns section 38(4) of the MACA. The Defendants’ submission is that the liability of the Defendants is only a matter of proving that they manufactured a vehicle which had a defect and that is the limit of the required material facts. In particular they say that the pleading of anything occurring after the date of first delivery of the vehicle is irrelevant.

  20. On my reading, those paragraphs set the context for the putative claim in negligence based on the alleged inadequate recall program. Events concerning the recall necessarily occurred after the RAV4 was purchased. Therefore it is nonsense to submit that events post the delivery of the vehicle are irrelevant. Each of the paragraphs complained of are grouped under a heading of “The knowledge and conduct of the Defendants” and I think that makes the point of the pleadings abundantly clear and I think the paragraphs complained of are consistent with that. They do not, as the Defendants submit, plead a multiplicity of causes of action against the Defendants.

  21. Further, the Defendants submit that to the extent that the knowledge of the Defendants in relation to the alleged insufficient recall changes with time, the Plaintiff is required to plead those changes over time. As the Proposed ASOC already contains sufficient pleading of relevant events over time, I cannot see what more the Defendants require to plead in response. In my view, all necessary material facts have been pleaded and I do not accept any claim by the Defendants of an inability to plead in response. If there is any shortcoming in the pleadings, that can also be addressed by extrinsic materials.

  22. The Defendants also submit that the facts which triggered the duty of the Defendants to act in respect of the pleaded defect must be pleaded with a reasonable degree of precision. Clearly the Defendants’ view is that the Proposed ASOC does not achieve that. However, in my view that has been achieved. The duties owed to the Claimant namely, to ensure that the vehicle was free of defects (including the specific airbag defect), and to take reasonable steps to notify persons in the position of the Claimant of that defect and to take appropriate action, have all been sufficiently pleaded.

  23. A general complaint is also made that those paragraphs are inconsistent and are a jumble of facts and evidence. I agree that inconsistent and unintelligible allegations can render the pleading embarrassing. I also agree that pleadings must have a coherent narrative. However, on my reading of those paragraphs the Defendants’ submission cannot stand. I think those paragraphs are sufficiently clear and are not inconsistent.

  24. Another complaint is made concerning paragraph 7B but I think that raises an irrelevancy. That paragraph pleads that inter alia the Claimant had not received any notification of the recall nor was she aware that the RAV4 contained a defective airbag, or that the vehicle or its Takata airbag was the subject of a recall. The Defendants’ complaint is that no discovery has been given of any document, nor have they been provided with any explanation as to how it is alleged that the Claimant was aware of the matters as alleged.

  25. I think that in part calls on the Plaintiff to plead evidence. That is curious given that some of the complaints made by the Defendants are that evidence, as opposed to material facts, are pleaded. It also raises discovery issues which I think are irrelevant to the question of leave to amend. That is because the pleadings set the parameters for discovery and therefore discovery follows the close of pleadings. At this stage there is no obligation on the Plaintiff to provide discovery of matters relative to the proposed amendments given that until leave is granted and until the Proposed ASOC is filed and served, the Proposed ASOC is not the pleading for the purposes of defining the parameters of discovery. Nor is there any obligation to provide explanations to the Defendants.

  26. Next, the Defendants complain that paragraphs 7C and 7D do not actually plead a cause of action.

  27. Paragraph 7C of the Proposed ASOC pleads that the recall undertaken by the Defendants was defective and provides extensive particulars of that allegation. Paragraph 7D pleads what appears to be facts surrounding a fine tuning of the recall campaign specifically, more concerted efforts to contact owners of affected vehicles.

  28. The Defendants submit that paragraph 7C alleges breach but does not support any pleaded cause of action. They say that paragraphs 7C and 7D can only support the cause of action in section 38(5) of the MACA. If so, they submit that paragraph 7C fails to plead a necessary prerequisite for a recovery based on that provision namely, the wrongful act or omission relied on.

  29. Although paragraph 7C may sound like an allegation of breach, it is actually the primary basis for the allegation of negligence as the putative liability for a claim under section 38(4) of the MACA. The relevant allegation in respect of that duty is that the Defendants were obliged to take reasonable steps to ensure that persons in the position of the Claimant were advised firstly, of the defect secondly, to procure an airbag replacement and lastly, not to use the vehicle. That is pleaded in paragraph 10B(a)(ii) of the Proposed ASOC. The allegation of breach in turn is contained in paragraph 10B(b) and causation in 10B(c). The result is that all the necessary material facts to support the claim have been pleaded.

  30. The only reference to a claim under section 38(5) of the MACA that I can find in the Proposed ASOC is in paragraphs 13 and 13A. Paragraph 13(a) pleads that the Defendants were persons whose wrongful act or omission caused or contributed to the subject motor vehicle accident. That is clearly insufficient as it only alleges that the Defendants were the persons who committed the wrongful act or omission. It needs to plead what the Plaintiff alleges was the actual wrongful act or omission relied on.

  31. I agree with the Defendants in respect of the pleading in paragraph 7D. That paragraph pleads facts which occurred after the subject motor vehicle accident and that is after the putative cause of action arose. They cannot be material facts for that reason and that must be evidence. That conclusion is supported by reason that paragraph 7D is not referred to in any other paragraph of the Proposed ASOC and that the paragraph is not necessary to establish the relief claimed. It may be that the Plaintiff considers that the actions of the Defendants which are referred to in paragraph 7D amount to an admission, implied or otherwise, that the recall program was insufficient. If so, that would clearly be evidence. Although the Plaintiff could lead that evidence at trial, from a pleading point of view, that would clearly breach rule 13.09(1) of the SCR. Leave in respect of paragraph 7D will accordingly be denied in any case.

  32. The Defendants’ objections to paragraphs 10, 10A, 10B and 10C were dealt with in composite form. These paragraphs relate to the putative liability based in negligence which supports the claim pursuant to section 38(4) of the MACA. The complaint is that paragraphs 10 and 10A plead a conclusion only. I agree in respect of paragraph 10 as that paragraph merely recites the requirements of section 38(4) in that there is a bare assertion that one or the other of the Defendants was the manufacturer. That is insufficient and ordinarily the material facts which support that allegation would be required to be pleaded.[26] Having said that, it is difficult to see what else the Plaintiff could meaningfully plead to comply with that pleading rule. I think that the allegation is sufficient as it stands and there can be no genuine confusion as to what is meant. Nothing to contradict that was put to me by the Defendants. Nor can the Defendants genuinely claim an inability to plead in response. Therefore I will allow the amendment as pleaded on a discretionary basis.

  33. I do not agree with the Defendants that paragraph 10A is similarly afflicted. That is because it relies on the pleading in paragraphs 7 and 7A, which paragraphs address that pleading requirement. That however is achieved in a way which offends another pleading rule namely, pleading material facts under the guise of particulars. That is not acceptable.[27] That needs to be corrected and that can easily occur. I will allow the Plaintiff an opportunity to re-plead that.

  1. Next, the Defendants have multiple complaints concerning paragraph 10B. The first is relatively minor and is a complaint of form rather than content. That is, it alleges two distinct causes of action rolled into a single pleading with multiple subparagraphs. I agree that this is not a coherent narrative. Ordinarily I would not refuse leave to amend on this basis and I would have the Plaintiff rectify that. The Defendants do not claim that they are unable to plead to the paragraph and therefore, although the pleading could have been set out better, lack of elegance falling short of a key pleading requirement is not a pleading concern so I disregard the Defendants’ complaint on a discretionary basis.

  2. Likewise in respect of the similar complaint concerning paragraph 10B(b). It is pleasing that the Defendants do not unnecessarily complain of an inability to plead as clearly that is not the case. Despite that, the Defendants seem to consider it acceptable to raise what I think is an unnecessary complaint apparently because multiple other complaints are made which are perceived to justify opposition to leave to amend. That is concerning. In any case, as the Defendants do not claim any inability to plead in response, I also disregard that on a discretionary basis.

  3. The Defendants also object to the pleading of the duty in paragraph 10B(a)(ii) as it contains an allegation to take reasonable steps to inform “..persons in the position of the Claimant” of the defect and to undertake actions. The complaint is that it requires a class of persons to be informed and that the duty does not fall within section 38(4) of the MACA on which that is predicated. I disagree. Section 38(4) of the MACA is the right of recovery but it is the putative liability in negligence that the pleading relates to. In my view the paragraph complained of properly addresses the requirements.

  4. The Defendants also complained that the duties pleaded in paragraphs 10B(a)(ii) and 10B(b)(ii) do not sufficiently plead the allegation that the Defendants acquired knowledge of the alleged defect over time. A similar complaint was made in relation to other paragraphs of the Proposed ASOC (see paragraph 47 above). By reason of the reference back to those other paragraphs in the paragraphs complained of, the comments I made there equally apply here.

  5. The Defendants criticised the pleading technique of pleading particulars by reference to previous paragraphs alleging material facts. A secondary and related complaint is the inclusion of further material facts under the guise of particulars. I agree that it is a fundamental pleading principle that material facts must be separately and specifically pleaded and particulars cannot be used to address shortcomings in material facts. If that is what the Plaintiff intends by the pleading complained of then that is impermissible.[28] However, if the reference back to other paragraphs of the pleading for purposes of particulars is simply reliance on the factual matrix comprised within the previously recited material facts, but without repeating that factual matrix in full, that is permissible in my view. Reliance on the actual facts component of a previously pleaded material fact is not the same as pleading a material fact in the form of particulars for pleading purposes. Paragraph 10B(b)(ii)(iv) is used as an example of this breach of pleading rules. I agree that that subparagraph is a breach of the relevant rule as that contains material facts and not particulars.

  6. Paragraphs 13 and 13A of the Proposed ASOC plead the alternative claim pursuant to section 38(5) of the MACA. The Defendants’ complaints were expressed by reference to the complaints regarding paragraphs 10, 10A, 10B and 10C discussed in paragraphs 58-64 (inclusive) above. This was due to the pleading in paragraph 13, and the consequent pleading in paragraph 13A, being pleaded in reliance of those same paragraphs. Corresponding comments as for paragraphs 58-64 above in respect of paragraphs 10, 10A, 10B and 10C therefore apply in respect of paragraphs 13 and 13A.

  7. That then leads into to the most contentious issue between the parties namely, the ACL claims. Those claims are the subject of the Defendants’ strike out application and they are pleaded in paragraphs 11B, 11C, 12B and 12C of the Proposed ASOC.

  8. The objection concerning the ACL claims essentially is that the claims are entirely a statutory right and are not a tort within the meaning of section 38 of the MACA, hence the Plaintiff does not have any right of indemnity. Had that challenge been made by opposing leave to amend in lieu of strike out, that would rely on the application of the futility principle as essentially the argument is that the ACL claims are not maintainable in law and are therefore destined to fail.

  9. Paragraphs 11B and 11C of the Proposed ASOC plead the putative liability under section 138 of the ACL and paragraphs 12B and 12C plead the putative liability under section 54 of the ACL. The actual wording of those paragraphs is of no real consequence as the contentious issue is whether an entitlement entirely the creature of statute can be a liability in tort for the purposes of subsections (4) and (5) of section 38 of the MACA. Other than in respect of that legal question, the Defendants made no complaint of the content of those paragraphs and I am of the view, after an admittedly cursory consideration only, that all the necessary material facts to support the ACL claims have been pleaded.

  10. Section 54 of the ACL provides for a statutory guarantee that goods supplied in trade or commerce are of acceptable quality. Section 138 of the ACL creates a statutory right of action against a manufacturer of defective goods. Sections 271-272 of the ACL then create a right to damages for those contraventions.

  11. The Plaintiff argues for an approach which will not require a concluded view on the legal question. That relies on the principle, discussed in paragraph 10 above, that at this stage of the proceedings, Courts should not be concerned with the merits of an amendment and that it should proceed to trial if it is arguable.

  12. Determination of the legal question is primarily a matter of statutory construction of the phrase “liable in damages, in tort or contract” in section 38(4) and 38(5) of the MACA, particularly the meaning of the word “tort” in that phrase. In the interpretative process the Court is to apply the “..ordinary and grammatical sense of the statutory words to be interpreted having regard to their context and the legislative purpose”.[29] As part of that, an interpretation which gives meaning to all of the words in the text is to be preferred.[30]

  13. The Defendants argue that the words “in tort or contract” are words of limitation and that the reference to “tort” in that phrase only refers to the traditional causes for recovery for motor vehicle accidents specifically, the tort of negligence.

  14. Unusually, both parties claimed that the phrase in section 5 of the MACA “..(either at common law or by statute)..” supported their respective cases. The Defendants argued that although section 5 abolishes both common law claims and claims under statute law, section 5 and section 38 serve different objectives, no doubt meaning that they cannot be read together. The Defendants submitted that section 5 is intended to capture every claim for injuries involving a motor vehicle accident but section 38 is intended to provide a limited means of recovery for the Plaintiff. Although that is consistent with the text of the provisions, that is the only point in favour of that submission as the claimed purpose and legislative intent is not apparent from the text in my view.

  15. The Defendants say that the context should be set by the legislative history, which is an appropriate way to set context in set circumstances.[31] Relevantly, the Defendants argue that as section 5 of the MACA was introduced after the notion of recovery of damages for personal injuries had been introduced into the Trade Practices Act 1974 (Cth) (“the TPA”), the Northern Territory Legislature must have had in contemplation that the abolition affected by the amended version of section 5 would apply to a claim under that Act as well. I think that is a strong argument.

  16. As for the amendment to section 38, the previous wording referred to a person “..liable to pay damages in respect of death or injury of a person..” and did not contain any references to specific causes of action. It is for that reason that the Defendants argue that the words “..in tort or contract..” in the current version of section 38 of the MACA are words of limitation. That is also a strong argument.

  17. On the other hand, the Plaintiff argues that contextually, because of the reference to “statute” in section 5 in respect of abolition of claims, the reference to “tort” in section 38 should be read as including statutory claims notwithstanding the absence of any reference to statutory claims in section 38 of the MACA.

  18. The Plaintiff, I think in application of the principle that legislation should be interpreted having regard to the Act as a whole, argues that there should be symmetry between section 5 and section 38 in terms of the rights abolished by section 5 and the rights of indemnity permitted by section 38. It was submitted that an interpretation which broadened the mechanisms for the Plaintiff to recover from responsible parties ensures the scheme’s economic viability. In contrast, excluding statutory causes of action from recovery rights would create an asymmetry. I do not think that is a strong argument in the face of the wording of the phrase in context and having regard to the legislative history.

  19. Based on the second reading speech and explanatory memorandum,[32] the Plaintiff submitted that the intention of the Legislature in enacting the most recent amendments to sections 5 and 38 of the MACA was not to limit the scope of the indemnification rights. However, my reading of the part of that extrinsic material relied on does not sufficiently establish the intention advanced by the Plaintiff. The part of the second reading speech relied on referred broadly to the changes to the legislation as:

    The combined effect of these initiatives is to substantially increase transparency and accountability in the administration of motor accident compensation benefits, maintain fair and reasonable compensation, improve the level of benefits provided for the most seriously injured, and enhance the capacity for compensation benefits to remain affordable...[33]

  20. Ensuring that the scheme of the MACA remained affordable was central to the Plaintiff’s submission that the right of indemnity in section 38 of the MACA was not intended to be confined to particular causes of action. It was argued that the narrow construction of that section advanced by the Defendants undermined a crucial mechanism for maintaining the scheme’s affordability. On that basis, the Plaintiff argued that the words “in tort or contract” were not intended by the Legislature to be words of limitation as those words are not uncommonly used as a shorthand substitution for reference to the field of general or compensatory damages. The Plaintiff argued that the phrase was intended to relate to a broad scope of damages liability.

  21. I think that the Plaintiff’s submission reads too much into the words of the second reading speech. Accepting for the purposes of argument that the objective is correctly stated, that objective says nothing at all about the intention of the Legislature as to the extent of the permitted recovery rights. It is really a question of how far the Legislature intended to go to achieve that objective. It does not necessarily mean that the Legislature intended to allow recovery rights other than as the clear language of the amended section 38 provides. That does not support the Plaintiff’s argument at all. The Defendants’ argument based on the context set by the legislative history is by far a much stronger argument.

  22. A similar argument was made in respect of the heading to section 5. Regard may be had to headings for the purposes of interpretation as they form part of an Act.[34] The heading to section 5 is “Abolition of common law rights”. The Defendants submitted that the text of the section should prevail over the heading. Although I recognise that headings will not necessarily limit or displace the clear text of an Act,[35] and that a heading can constrain a section in appropriate circumstances,[36] care must be taken not to automatically disregard the heading in the interpretive process. That would be contrary to the principle of construction from Project Blue Sky Inc v Australian Broadcasting Authority,[37] that a provision must be construed so that it is consistent with the text and purpose of all of the provisions of the statute and “..by reference to the language of the instrument viewed as a whole”.[38]

  23. In addition to the interpretative approach to the legal question, the Defendants say that case law that the term “tort” does not include a statutory cause of action is settled. That was argued by reference to the term “tort” as used in a similar context in different legislation in another jurisdiction namely, the equivalent of section 12 of the Law Reform (Miscellaneous Provisions) Act 1956 (NT) (“the LRMPA”) in the context of a contravention of section 52 of the TPA. That provision establishes an avenue for one tortfeasor to seek contribution from other tortfeasors in respect of claims in tort.

  24. In two of the most recent cases to consider the question, Hulme J in Jonstan Pty Ltd v Nicholson and Ors (“Jonstan”),[39] and, to a lesser extent, Wigney J in The Owners - Strata Plan No 87231 v 3A Composites GmbH (No 3) (“3A Composites”),[40] set out a detailed analysis of the various authorities. There is nothing specifically on point in respect of subsections 38(4) and (5) of the MACA but the parties both argued their cases on the basis that section 12 of the LRMPA, in conjunction with section 52 of the TPA, was analogous. There are authorities in respect of the corresponding provision to section 12 of the LRMPA as it applies in another jurisdiction.

  25. That is firstly, in ANZ Banking Group Ltd v Turnbull & Partners Limited (“Turnbull”).[41] That involved a cross-claim for contribution under the equivalent of section 12 of the LRMPA in relation to a claim for damages for a contravention of section 52 of the TPA. The claim for contribution could only be made if a claim for a contravention of section 52 of the TPA was a claim in tort. Similarly to section 12 of the LRMPA, the corresponding text in the provision in Turnbull was comparable and also contained the words “tort” and “tortfeasor”. Sheppard J described the claim for contravention of section 52 of the TPA as “entirely statutory” and not “an action in tort”.[42]

  26. In Bialkower v Acohs Pty Ltd (“Bialkower”),[43] the Full Court of the Federal Court agreed with Sheppard J that an action for breach of section 52 of the TPA was not an action in tort. Without necessarily diminishing the force of that authority, that comment in that case was clearly obiter as the following extract demonstrates:

    Section 5 of the Law Reform (Miscellaneous Provisions) Act is not directly relevant in the present case. However, notwithstanding the view of Mr Campbell QC which appealed to Cooper J in Dorrough, we are inclined to the view that Sheppard J was correct when he said in Turnbull that the cause of action under s 82 for breach of s 52 of the Act is entirely statutory and is not an action in tort. It is true that actions based on s 52 are analogous to actions in tort, and that because of this the rules for assessing damages in tort, rather than those for assessing damages in contract, are the appropriate guide for assessments under s 82… But the cause of action is created by the statute. Unlike the tort of breach of statutory duty, the common law plays no part in the creation of the cause of action. However, since s 5 does not apply to the present case, we need not decide the point.[44] (Emphasis added)

  27. Cooper J in Dorrough v Bank of Melbourne Ltd,[45] acknowledged the decision in Turnbull but with the caveat that it was not clear to what extent that issue had been argued. He noted what he referred to as a substantial argument that a claim for breach of section 52 of the TPA was a claim in tort. As the extract in the previous paragraph demonstrates, in coming to that conclusion his Honour had regard to an article by J Campbell QC (subsequently Campbell JA of the Court of Appeal of the Supreme Court of New South Wales).[46]

  28. In Burke v LFOT Pty Ltd (“Burke”),[47] the Full Court of the Federal Court did not consider that an entitlement to damages under the TPA was a tort. The decision in Bialkower was referred to with apparent approval, albeit without any considered discussion of that authority.[48] Burke was obiter as no question arose in that case as to whether or not an action for damages under the TPA was an action in tort.

  29. The end decision in Burke was overturned by the High Court on appeal but the High Court did not consider the current issue as that was not relevant to the case.[49]

  30. Hulme J in Jonstan relied on extrinsic material in the form of the second reading speech,[50] to conclude that no narrow meaning was intended to be given to the terms “tort” and “tortfeasor” in the equivalent of section 12 of the LRMPA, apparently disagreeing with Turnbull and Bialkower. He considered that such a meaning was inconsistent with that legislative intention. He concluded in the end that section 52 of the TPA created a tortious liability.

  31. In 3A Composites Wigney J, after a detailed consideration of the foregoing authorities, noting that the view expressed in Bialkower was obiter and agreeing with the conclusions in Jonstan, determined that it was not necessary to reconcile the opposing views. He concluded that it was at the very least arguable that a breach of section 52 of the TPA was a tort. Although he made no specific reference to section 138 of the ACL, he did in the case of the statutory guarantee provided by section 54 of the ACL and likewise concluded that it was at least reasonably arguable that such a claim was an action in tort.

  32. The Defendants say that Jonstan is not an appropriate comparator for a number of reasons. Firstly, the question under consideration in that case was purely in the context of a statutory right of contribution as between Defendants. I do not see how that makes a difference to the question of whether a statutory liability can be said to be a tort. Secondly, the case only concerned the meaning of “tort” within the language of that statute. However what is relevant is the use and meaning of the term “tort” and I am of the view that the context there was sufficient to render the comparison appropriate. Lastly, the provision under consideration in that case differed as the current case deals with a different statutory right, namely an indemnity without a right of contribution. I also fail to see how that makes a difference.

  33. Given the state of the authorities, the Plaintiff argued in favour of an approach consistent with Spencer v Commonwealth (“Spencer”),[51] and MacDonnell Shire Council v Miller.[52] Relying on General Steel Industries Inc v Commissioner for Railways (NSW) (“General Steel”),[53] it was submitted that the Defendants must establish a “definite and certain conclusion” that the claims will fail. Otherwise, the Plaintiff argues, the authority is clear that “summary processes must not be used to stultified the development of the law” referring to Spencer.[54]

  34. However, I am required to assess the Defendants’ application based on the test in rule 23.02 of the SCR for the summary determination of claims namely, the ‘no reasonable prospects of success’ test.[55] General Steel is of less specific significance albeit that many of the principles concerning summary determination of claims contained in that case remain relevant under the new test.

  1. Despite the Defendants’ submission that the case law that a statutory cause of action is not a tort is settled, as the above analysis demonstrates, I do not consider that the position has been finally resolved. Turnbull was a very positive statement that a statutory right is not a tort but, with respect, that view was expressed without the detailed analysis evident in Jonstan and, to a lesser extent, in 3A Composites. Although the view in Turnbull was preferred in Bialkower by the Full Court of the Federal Court, an obviously high authority, that decision was obiter.

  2. All that leads me to also conclude that the position is not finally determined in the sense referred to in Spencer.[56] Although I accept that the weight of opinion, including my own view, favours the case put by the Defendants, I consider that the view that “tort” as referred to in section 38 of the MACA includes claims pursuant to section 54 and section 138 of the ACL, is at least arguable.

  3. That leads to consideration of the Plaintiff’s submission that it is not appropriate to determine this question on a summary basis. That was the end result in Turnbull where, despite Sheppard J’s positive view to the contrary, he exercised his discretion not to strike out because the case before him was the first consideration of the application of the equivalent of section 12 of the LRMPA in any jurisdiction.

  4. I have regard to Spencer and the comments regarding the summary determination of proceedings made by the High Court in that case. That case concerned the application of section 31A(2) of the Federal Court Act 1976 (Cth). That provides for the ‘no reasonable prospects of success’ test for summary determination of claims, which is the same test as now applies under the SCR since changes made in 2018.[57] French CJ and Gummow J said:

    Section 31A(2) requires a practical judgment by the Federal Court as to whether the applicant has more than a “fanciful” prospect of success. That may be a judgment of law or of fact or of mixed law and fact. Where there are factual issues capable of being disputed and in dispute, summary dismissal should not be awarded to the respondent simply because the Court has formed the view that the applicant is unlikely to succeed on the factual issue. Where the success of a proceeding depends upon propositions of law apparently precluded by existing authority, that may not always be the end of the matter. Existing authority may be overruled, qualified or further explained. Summary processes must not be used to stultify the development of the law. But where the success of proceedings is critically dependent upon a proposition of law which would contradict a binding decision of this Court, the court hearing the application under s 31A could justifiably conclude that the proceeding had no real prospect of success.[58]

  5. Relying on the foregoing, and also because the interpretation question has not been judicially considered, and despite that I think the argument of the Defendants concerning the ACL claims is stronger than that of the Plaintiff, in the exercise of my discretion I decline to order a strike out of the ACL claims. I do not consider that those claims should be determined on a summary basis. Those claims should be determined by the trial Judge. I will allow the pleadings for those claims to stand.

  6. I also grant the Plaintiff leave to file and serve an amended Statement of Claim in the form of the Proposed ASOC, save and except:

    (a)the second sentence of the particulars to paragraph 3E;

    (b)paragraph 13(a);

    (c)paragraph 7D;

    (d)paragraph 10A;

    (e)paragraph 10B(b)(ii)(iv).

    The Plaintiff has leave to re-plead those excepted parts.

  7. I will hear the parties as to consequential orders.


[1] [2018] NTSC 7.

[2][2009] NTSC 46.

[3](1990) 170 CLR 394.

[4]See generally, Michael Grant, Presidian Legal Publications, Civil Procedure Northern Territory (at Service 18) [5.36.29].

[5]MacDonnell Shire Council v Miller [2009] NTSC 46.

[6]    MacDonnell Shire Council v Miller [2009] NTSC 46 at [9]; The Commonwealth of Australia v Verwayen (1990) 170 CLR 394 at 456 (Dawson J).

[7]MacDonnell Shire Council v Miller [2009] NTSC 46 at [9]; The Commonwealth of Australia v Verwayen (1990) 170 CLR 394 at 456 (Dawson J).

[8]MacDonnell Shire Council v Miller [2009] NTSC 46.

[9] [2021] NTSC 89 at [3].

[10]     Banque Commerciale SA En Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279; RTA Pty Ltd v Brinko Pty Ltd [2011] NTSC 103.

[11]     Northern Territory of Australia v John Holland Pty Ltd & Ors [2008] NTSC 4.

[12] Rule 13.09(1) of the SCR.

[13]     Northern Territory of Australia v John Holland Pty Ltd & Ors [2008] NTSC 4.

[14]     Rule 13.09(1) of the SCR; see also Environinvest Ltd v Prescott & Ors; Environinvest Limited v Blackburne Pty Ltd & Ors [2011] VSC 325.

[15]     Barr Rock Pty Ltd v Blast Ice Creams Pty Ltd [2011] QCA 252.

[16]     Barr Rock Pty Ltd v Blast Ice Creams Pty Ltd [2011] QCA 252.

[17]Environinvest Ltd v Prescott & Ors; Environinvest Limited v Blackburne Pty Ltd & Ors [2011] VSC 325.

[18]     Environinvest Ltd v Prescott & Ors; Environinvest Limited v Blackburne Pty Ltd & Ors [2011] VSC 325.

[19]     Queensland v Pioneer Concrete (Qld) Pty Ltd [1999] FCA 499; See also the cases discussed in Wickham Point Development Pty Ltd v The Commonwealth of Australia [2018] NTSC 7 at [13]-[21].

[20]Supreme Court of the Northern Territory, Practice Direction No 6 of 2009 – Trial Civil Procedure Reforms, 11 June 2009, [3]-[10].

[21]Wickham Point Development Pty Ltd v The Commonwealth of Australia [2018] NTSC 7; Aldebaran Constructing Pty Ltd v Tiwi Islands Regional Council [2021] NTSC 89.

[22]     Toyota Motor Corporation v Motor Accidents (Compensation) Commission [2022] NTCA 5 at [12]-[14].

[23]     Whelan v John Fairfax & Sons Ltd (1998) 12 NSWLR 148 at [40].

[24]     Pinson v Lloyds & National Provincial Foreign Bank Ltd [1941] 2 KB 72 at 75.

[25]Southern Cross Exploration NL vFire & All Risks Insurance Co Ltd [1985] 2 NSWLR 340 at 350.

[26]Northern Territory of Australia v John Holland Pty Ltd & Ors [2008] NTSC 4.

[27]     Southern Cross Exploration NL vFire & All Risks Insurance Co Ltd [1985] 2 NSWLR 340.

[28]     Southern Cross Exploration NL vFire & All Risks Insurance Co Ltd [1985] 2 NSWLR 340.

[29]Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at [4]; see also section 62A of the Interpretation Act 1978 (NT).

[30]Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at [47]; Williamson v Commonwealth of Australia & Ors [2023] NTSC 56 at 22; see also D Pearce, Statutory Interpretation in Australia, (LexisNexis, 9th ed, 2019) at 67.

[31]Williamson v Commonwealth of Australia & Ors [2023] NTSC 56.

[32]Reference to the second reading speech in the interpretation process is permitted by section 62A(2) of the Interpretation Act 1978 (NT).

[33]Northern Territory, Parliamentary Debates, Legislative Assembly, 21 February 2007, 4081 (Syd Stirling, Treasurer).

[34]     Interpretation Act 1974 (NT), s 55(2); see also D Pearce, Statutory Interpretation in Australia, LexisNexis, 9th Ed at [4.65]-[4.66].

[35]Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre Ltd (1978) 140 CLR 216.

[36]     Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594.

[37](1998) 194 CLR 355.

[38] (1998) 194 CLR 355 at 381.

[39](2003) 58 NSWLR 223.

[40][2020] FCA 748.

[41](1991) 33 FCR 265.

[42] (1991) 33 FCR 265 at 277.

[43](1998) 83 FCR 1.

[44] (1998) 83 FCR 1 at 11 [11E].

[45][1995] FCA 785.

[46]JC Campbell, ‘Contribution, contributory negligence and Section 52 of the Trade Practices Act - Part 1’ (1993) 67(2) Australian Law Journal 87.

[47](2000) 178 ALR 161.

[48](2000) 178 ALR 161 at 183 [107], 189 [131].

[49]     Burke v LFOT Pty Ltd (2002) 209 CLR 282.

[50]In the Northern Territory that is permitted by section 62B of the Interpretation Act 1978 (NT).

[51] (2010) 241 CLR 118.

[52][2009] NTSC 46.

[53](1964) 112 CLR 125 at 129.

[54](2010) 241 CLR 118 at [25].

[55]Olive & Anor v Oceanview Developments Pty Limited & Ors [2023] NTSC 38.

[56]     Refer to the passage reproduced in paragraph 97.

[57]Olive & Anor v Oceanview Developments Pty Limited & Ors [2023] NTSC 38.

[58](2010) 241 CLR 118 at 132 [25].

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