Toyota Motor Corporation Australia Limited v Motor Accidents (Compensation) Commission - [2022] NTCA 5

CITATION:Toyota Motor Corporation Australia Limited and anor v Motor Accidents (Compensation) Commission [2022] NTCA 5
PARTIES:TOYOTA MOTOR CORPORATION AUSTRALIA LIMITED (ACN 009 686 097)

and
TOYOTA MOTOR CORPORATION
v
MOTOR ACCIDENTS (COMPENSATION) COMMISSION

TITLE OF COURT:  COURT OF APPEAL OF THE NORTHERN TERRITORY
JURISDICTION:  CIVIL APPEAL from the SUPREME COURT exercising Territory jurisdiction
FILE NO:AP 6 of 2022 (22217911)
DELIVERED:  5 October 2022
HEARING DATES:  Determined on the papers.
JUDGMENT OF:  Barr J
CATCHWORDS:

PRACTICE AND PROCEDURE – Appeal – Court of Appeal consisting of single judge – Application for leave to appeal from interlocutory decision of Associate Judge refusing application by applicants for separate trial of preliminary question – SCR 47.04 – Decision appealed from interlocutory, in a matter of practice and procedure – Applicants failed to establish that decision was wrong or attended with sufficient doubt as to warrant leave to appeal – Leave refused – Application dismissed
PRACTICE AND PROCEDURE – Appeal – Court of Appeal consisting of single judge – Application for leave to appeal from interlocutory decision of Associate Judge granting application by respondents for particular discovery – SCR 29.08 – Decision appealed from interlocutory, in a matter of practice and procedure – Applicants failed to establish that decision was wrong or attended with sufficient doubt as to warrant leave to appeal – Leave refused – Application dismissed
Motor Accidents (Compensation) Act 1979, s 38
Supreme Court Rules, r 47.04, r 29.08
Supreme Court Act, s 53 (2) and s 53 (3)
Motor Accidents (Compensation) Commission v Toyota Motor Corporation Australia Ltd and anor [2022] NTSC 39
Iskandar v Merpati Nusantera Airline (No. 2) (2006) 16 NTLR 22; Nationwide News Pty Ltd (t/as) Centralian Advocate and Ors v Bradshaw and Anor (1986) 41 NTR 1; Northern Territory of Australia v GRD Kirfield Ltd & Anor [2003] NTCA 01; Northern Territory of Australia v Roberts [2009] NTCA 5; Rogerson v Law Society of the Northern Territory (1993) 88 NTR 1; Wright Engineers Pty Ltd and Anor v BTR Trading (Qld) Pty Ltd and Anor [1987] NTCA 4; Skycity Darwin Pty Ltd v Groote Eylandt Aboriginal Trust Incorporated (Statutory Manager Appointed) [2015] NTCA 4, applied.
REPRESENTATION:
Counsel:
Applicants: M Spain
Respondent:  T R Price
Solicitors:
Applicants:Clayton Utz
Respondent:  YPOL Lawyers
Judgment category classification:    B
Judgment ID Number:  Bar 2211
Number of pages:  23

IN THE COURT OF APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Toyota Motor Corporation Australia Limited and anor v
Motor Accidents (Compensation) Commission [2022] NTCA 5
No. AP6 of 2022 (22217911)

BETWEEN:
TOYOTA MOTOR CORPORATION AUSTRALIA LIMITED (ACN 009 686 97)
First Applicant

AND
TOYOTA MOTOR CORPORATION
Second applicant

v
MOTOR ACCIDENTS (COMPENSATION) COMMISSION
Respondent

CORAM: Barr J
REASONS FOR DECISION
(Delivered 5 October 2022)
Introduction

The applicants seek leave to appeal from the judgment or part of the judgment of Acting Associate Judge Huntingford given on 17 May 2022,[1] and from the consequential orders made by her Honour on 2 June 2022. The judgment was an interlocutory judgment and leave to appeal is therefore required by s 53(1) Supreme Court Act. The application must be determined in the first instance on the papers by the Court of Appeal consisting of a single judge; if the application is refused, the applicants are entitled to have the application determined by the Court of Appeal consisting of not less than three judges.[2]
Huntingford A/AsJ heard and decided two applications: (1) an application by the respondent Commission (plaintiff below) seeking discovery of particular classes of documents, and (2) an application by the applicants (defendants below) seeking an order for a separate trial of a question in advance of the trial proper. Both applications were contested.
Her Honour dismissed the application for a separate trial. Her Honour granted the discovery application in substantial part. The applicants seek leave to appeal both decisions.
The Supreme Court proceeding
The respondent was established as a corporate entity by s 4 Territory Insurance Office Act 1979, and was then called the ‘Territory Insurance Office’. It was continued as the same corporate entity by s 5(1) Motor Accidents (Compensation) Commission Act 2014, but re-named the Motor Accidents (Compensation) Commission. It administers the no-fault Motor Accidents Compensation Scheme and pays statutory benefits in accordance with the Motor Accidents (Compensation) Act 1979.
For ease of understanding I will refer to the respondent as “the Commission”.
Pursuant to s 38 Motor Accidents (Compensation) Act 1979, the Commission is entitled to be indemnified, by various categories of third parties, in respect of statutory benefits paid in relation to death or injury arising from a ‘motor accident’. The category of third party specified in s 38(4) includes the manufacturer of a vehicle involved in an accident where a defect in the manufacture caused or contributed to the accident. The category of third-party specified in s 38(5) is a person, other than the owner or driver of a vehicle involved in an accident, “whose wrongful or negligent act or omission caused or contributed to the accident”. There is an additional requirement under both subsections that the third party would have been liable in damages in tort or contract for the death or injury, on the assumption that the Motor Accidents (Compensation) Act 1979 had never existed.
In the Supreme Court proceeding below, the Commission (plaintiff) claims to be indemnified by the first and second applicants (first and second defendants) pursuant to s 38(4), alternatively s 38(5) Motor Accidents (Compensation) Act 1979, in respect of statutory benefits paid by the Commission to Ms Gaynor Hill.
Ms Hill was seriously injured in a collision between two motor vehicles which occurred on 24 April 2017. She was the driver of a Toyota RAV4 vehicle which came into collision with an oncoming vehicle which had turned in front of and across the path of the Toyota.
In its statement of claim in the Supreme Court proceeding, the Commission alleges that “during the collision, or as a result of the impact between the two vehicles”, the front driver’s side airbag in the Toyota “deployed”. The specific mechanism of injury was particularised as follows: “… metal fragments from the airbag inflator assembly were ejected from the airbag. One of the metal fragments penetrated [Ms Hill’s] eye and brain, causing left-sided blindness and a traumatic brain injury”.[3]
The Commission further alleges that, at the date of commencement of the proceeding,[4] it had paid benefits to or on behalf of Ms Hill in respect of her injuries in the sum of $540,759.48 in accordance with its obligations under the Act.
The pleadings – the statement of claim
A condition precedent for a party to be “liable to indemnify” the Commission is that the Commission has paid benefits to a person in relation to death or injury arising from a “motor accident”, a term defined in s 4A Motor Accidents (Compensation) Act 1979 as follows:
(1) A motor accident is an occurrence:
(a)caused by or arising out of the use of a motor vehicle; and
(b)resulting in the death of, or injury to, a person.
(2) A motor accident is caused by or arises out of the use of a motor vehicle if, and only if, it results directly from:
(a)the driving of the motor vehicle; or
(b)the motor vehicle moving out of control; or
(c)a collision, or action to avoid a collision, with the motor vehicle (whether the motor vehicle is stationary or moving).
In my opinion, the statement of claim is poorly pleaded. Material facts essential to the causes of action, which should be pleaded in separate paragraphs,[5] are included as ‘Particulars’. The crucial allegation, that the first and/or second defendant manufactured the vehicle driven by Ms Hill, is included only as a particular of the Commission's entitlement to indemnity.[6] The similarly important allegation, that the manufacturer would have been liable in damages in tort (if the Act had never existed), is also included only as a particular.[7]
There are further problems with the statement of claim. Notwithstanding that the Commission alleges that the manufacturer would have been liable in damages in tort for Ms Hill’s injuries,[8] it proceeds to then allege, as a particular,[9] that “the manufacturer would have been liable to pay damages to the Claimant pursuant to s.138 Australian Consumer Law”.[10] An action against a manufacturer brought pursuant to s 138 to recover the amount of loss and damage suffered because of a safety defect in manufactured goods is a statutory civil action, not an action in tort. The Commission’s reliance on s 138 of the Australian Consumer Law appears misconceived.
In its alternative indemnity claim pursuant to s 38(4) Motor Accidents (Compensation) Act 1979, the Commission alleges (again as a ‘particular’) an implied guarantee that the vehicle was “of acceptable quality pursuant to s 54 Australian Consumer Law”.[11] It is unclear how the Commission seeks to characterise this alternative indemnity claim as one “in tort or contract”, as required by s 38(4). The consumer guarantees regime contained in the Australian Consumer Law creates specific statutory duties.[12] Consumer guarantees are not implied contractual terms. If goods do not comply with a consumer guarantee, such as the guarantee as to acceptable quality in s 54 Australian Consumer Law, the rights and remedies available against a manufacturer are statutory, rather than contractual in nature.[13] Further, it is difficult to see how the matters particularised could have been the basis for an action in tort. The allegation[14] that the first and/or second defendants would have been liable in damages in tort pursuant to s 271 Australian Consumer Law appears misconceived; the section enables a (statutory) action for damages against the manufacturer of goods where a s 54 statutory guarantee is not complied with. That is not an action in tort.
Of particular relevance to the present application for leave to appeal is the fact that the statement of claim does not allege the occurrence of a “motor accident”, or even refer to that defined term. As a general principle, a plaintiff must plead its case with clarity sufficient to preclude conjecture as to what the case being made against a defendant might be.[15] As mentioned in [11], a condition precedent for a party to be “liable to indemnify” the Commission is that the Commission has paid benefits to a person in relation to death or injury arising from a “motor accident”.
The statement of claim contains a heading, “The Accident”, before paragraph 4, and there is a reference to “the collision” in paragraph 6. However, on my understanding of the facts alleged by the Commission, the relevant “motor accident” was not the collision itself, but rather the immediate post-collision occurrence in which metal fragments from the airbag inflator assembly were ejected from the airbag, causing Ms Hill’s serious injuries. That post-collision occurrence was the relevant “occurrence” and therefore the “motor accident” which was caused by or arose out of the use of a motor vehicle in that it resulted directly from a collision. I refer to s 4A(2)(c) Motor Accidents (Compensation) Act 1979.
Paragraph 6 of the statement of claim pleads the facts of “the collision”, consistent with the summary in [8] above. However, the Commission does not plead and identify the occurrence described in [9] as the relevant “motor accident” which resulted directly from the collision and which caused Ms Hill’s injuries.
It may be noted that both of the applicants admit “the collision” as alleged in paragraph 6, but then characterise the collision itself as a “motor accident” within the meaning of the Act.[16] Based on that characterisation (or mis-characterisation), both applicants deny that the deployment of the driver’s front airbag caused or contributed to the accident. They further allege that the accident occurred as a result of the acts or omissions of the drivers of the two vehicles involved in the collision.[17] The applicants’ pleadings in this respect suggest a level of obtuseness, albeit in the context of an inadequately pleaded statement of claim.
In the circumstances, I would have expected that the Commission would re-plead its claim, or possibly attempt to clarify the issue in its Reply to each of the defences. It did neither. At the time the applications came before Huntingford A/AsJ, the pleadings obfuscated the issues between the parties in significant respects. Her Honour was not greatly assisted by the parties. After a careful consideration of the matters in dispute on the pleadings, with specific reference to the defences, her Honour concluded as follows:[18]
As the discussion above illustrates, the defendants do not concede that the airbag was defective, what the defect was, whether it constituted a defect in the manufacture of the vehicle, their state of knowledge of any defect at particular times, or that they failed to take appropriate steps to warn the claimant or the owner of the risk. There is also no clear admission as to the mechanism of the claimant’s injury.
Consideration of the decision – the separate trial issue
I refer to the summary of the parties’ applications in [2] above.
The question in respect of which a separate trial was sought by the applicants (defendants below) was as follows:[19]
Pursuant to rule 47.04, the following question be tried before the balance of the proceeding: In the premises of the facts pleaded in paragraphs 4 to 7 of the plaintiff’s statement of claim filed on 9 April 2020 and the matters admitted in pleaded in paragraphs 4 to 7 of the first defendant’s defence filed on 21 May 2021 and the second defendant’s defence filed on 30 July 2021, whether the deployment of the airbag caused or contributed to the subject accident within the meaning of sub-section 38(4) and/or s 38 (5) of the Motor Accidents Compensation Act 1979 (NT).
Huntingford A/AsJ refused the application for a number of reasons. The first reason was that the applicants had failed to “engage properly with the legislation and therefore the matters which the plaintiff has to prove”.[20] Her Honour considered that the applicants’ contention – that the deployment of the airbag did not cause the collision – “missed the mark”. This was in specific reference to par 7(c) of the defence of each applicant. With respect, I agree. I refer to my observation in [18] above in relation to par 6 of the defences. Although the statement of claim was poorly pleaded, it is tolerably clear that the plaintiff did not allege that the collision itself was caused by deployment of the airbag.
The second reason given by her Honour was that, contrary to the applicants’ submissions, analysis of the pleadings showed that central facts remained in issue. Specifically, the mechanism of injury was not admitted on the pleadings,[21] and, relevant to the claim under s 38(4), the existence of a defect was denied.[22] Her Honour stated, correctly in my view, that the claim pursuant to s 38(5) required proof of numerous facts in order to establish negligence.
The third reason given by her Honour was that the question framed by the applicants would require determination of questions of mixed fact and law.[23] In other words, there would be no ‘neat resolution’ of identified issues following legal argument in relation to admitted facts. Her Honour observed as follows:[24]
In summary, there are significant disputes as to factual matters that would need to be resolved before any legal argument could proceed. The question posed is not framed in a way which clearly articulates a short and discrete legal issue relevant to the language of the MAC Act and the questions which are potentially raised include some of mixed fact and law. In those circumstances I think that a trial of the preliminary question posed by the defendants is unlikely to expedite the resolution of the proceeding. On the contrary, the result is likely to be extra delay, expense and uncertainty.
Huntingford A/AsJ acknowledged that in some cases, properly used, a separate trial of a preliminary question can be an effective way of achieving a just, speedy and cheap resolution of a dispute.[25] However, for good reason, her Honour did not consider that a separate trial would be effective in the present case. Her decision to refuse the application for a separate trial of the question extracted in [21] above was based on her Honour’s assessment of the issues raised on the pleadings and was consistent with the authorities.[26] The applicants have not established error in her Honour’s approach.
The interlocutory judgment of Huntingford A/AsJ was a discretionary judgment in relation to a matter of practice and procedure.[27] In general, in an application for leave to appeal from a discretionary judgment, it must be shown that the judgment appealed from is either wrong, or at least attended with sufficient doubt so as to warrant the granting of leave. Further, if the judgment sought to be appealed is a discretionary judgment in a matter of practice and procedure, then, notwithstanding that error may be shown, leave may still be refused unless it can be shown that substantial injustice will be done by leaving the erroneous decision unreversed.[28]
I have carefully considered the grounds proposed to be argued by the applicants, set out in the affidavit of Mark Cameron Spain.[29] In my opinion, the applicants have not established that the judgment was wrong or attended with sufficient doubt as to warrant the granting of leave for its reconsideration on appeal. Leave should be refused.
Consideration of the decision – the order for discovery
As mentioned in [2] above, the Commission made application for an order for limited discovery of particular categories of documents.
The documents sought at pars (a) – (d) of the application were documents relating to communications between the Toyota Motor Corporation (second applicant) and others in relation to the manufacture and supply of the airbag or type of airbag in the RAV4 vehicle.
The documents sought at pars (e) – (g) were documents created by or communications between the first and second defendants before the date of the accident, mainly relating to the risks of rupture of the airbag inflator.
The documents sought at pars (h) – (i) were communications between Toyota Motor Corporation Australia Limited (first applicant) and the Vehicle Safety Standards Branch of the Commonwealth Department of Infrastructure and Regional Development.
The nine categories of documents sought by the Commission were as follows:
a.     Communications, including electronic communications, from the Second Defendant, or any entity communicating on behalf of the Second Defendant, to Takata Corporation, or Tokai Rika Company Limited sent prior to 1 February 2005 in which the Second Defendant specified minimum safety and performance requirements for phase stabilised ammonium nitrate (PSAN) propellant airbags for use in vehicles manufactured by the Second Defendant.
b.    Communications, including electronic communications from Takata Corporation to the Second Defendant, or any entity on behalf of the Second Defendant, for the period March 2000 to March 2005 in which Takata Corporation reported to the Second Defendant testing data, including any safety testing data, for its airbags including but not limited to Production Validation Reports, Delta Production Validation Reports, and lot acceptance testing.
c.     Communications, including electronic communications from Takata Corporation to the Second Defendant, or any entity on behalf of the Second Defendant, for the period 18 March 2005 to 24 April 2017 in which Takata Corporation reported to the Second Defendant testing data, including any safety testing data, for its airbags including but not limited to Production Validation Reports and Delta Production Validation Reports, and lot acceptance testing.
d.     Communications, including electronic communications between Takata Corporation and the Second Defendant, or any entity on behalf of the Second Defendant, for the period 18 March 2005 to 24 April 2017, in relation to the risk or likelihood of inflator rupture in airbags manufactured by Takata Corporation.
e.     Communications, including electronic communications between the Second Defendant and the First Defendant in relation to the risk or likelihood of inflator rupture in airbags manufactured by Takata Corporation for the period March 2000 to 24 April 2017.
f.     Documents created or received by the First or Second Defendant prior to 24 April 2017, including technical reports, internal memoranda, correspondence, and communications in relation to the risks posed by PSAN propellant airbags manufactured by Takata Corporation.[30]
g.    Documents created or received by the First or Second Defendant prior to 24 April 2017, including technical reports, internal memoranda, correspondence, and communications in relation to the risks posed by airbags manufactured by Takata Corporation at its Monoclova plant in Mexico.
h.    Emails sent between 28 April 2017 and 6 May 2017 by the Commonwealth Department of Infrastructure and Regional Development (Vehicle Safety Standards Branch) to the First Defendant requesting information following the meeting of 28 April 2017.
i.     Communications, including electronic communications sent by the First Defendant to the Commonwealth Department of Infrastructure and Regional Development (Vehicle Safety Standards Branch) in response to any email within category (h).

The application for leave to appeal relates to the discovery orders made by Huntingford A/AsJ in relation to categories (a), (b), (e), (f) and (g). For that reason, I will confine my consideration to the orders made by her Honour in relation to those categories and, where relevant, refer to the difference(s) between what was applied for and what was granted.
In relation to categories (a) and (b), her Honour acknowledged the second applicant’s submission as to the unnecessarily wide scope of discovery sought. Her Honour accepted that it was not appropriate to require discovery in relation to all airbags used by the applicants, because the questions in the proceeding were limited to the particular type of airbag inflator fitted to the subject RAV4.[31] Accordingly, her Honour held that discovery in categories (a) and (b) should be limited to documents relevant to the type of inflator and airbag used in the RAV4, although that might include general specifications, test results and the like for that type of inflator if it had been installed in other vehicles in addition to being installed in the RAV4.[32]
Leave to appeal is sought on the asserted basis that Huntingford A/AsJ erred in law in ordering discovery to be given in reliance on her finding that “documents relating to the design of the airbag … including applicable design specifications, testing and quality control information … [were] relevant both to the question of whether there was a defect and also the state of the second defendant’s knowledge of the risk”.[33]
I extract below in full par [63] of her Honour’s reasons:
The defendants further submit that communications about safety and performance requirements for the relevant airbags cannot be relevant to a question in the proceeding. The plaintiffs [sic] argue that the documents described are relevant because the defendants have put in issue both the existence of a defect at the time of supply of the airbag to the second defendant in February 2005, and at the time of sale to the owner in March 2005, and their state of knowledge at each of those times. Each of the defendants denies that the airbag was defective at those times at paragraphs 10(c) and 12(c) of their respective defences.[34] It is clearly arguable that an airbag with a propensity for moisture intrusion is defective from the time it is manufactured, not only at the time that the airbag component is degraded or when the risk manifests. Senior counsel for the defendants conceded that that is an issue in the proceeding.[35] Documents relating to the design of the airbag procured by the second defendant, including applicable design specifications, testing and quality control information, required by the second defendant as part of the procurement, are therefore relevant both to the question of whether there was a defect and also the state of the second defendant’s knowledge of risk.
In support of the contention that Huntingford A/AsJ erred in the manner asserted in [35], the applicants contend, inter alia, that the question whether there was a defect in the airbag inflator fitted to the subject vehicle is not to be determined by consideration of what, if any, communication of specifications or testing data occurred about the airbag inflator prior to its manufacture or assembly in the subject vehicle. Such communications are said to be not relevant to the question of whether there was a defect. The applicants further contend that there was no allegation to suggest that the [applicants] or either of them had any knowledge of the relevant defect in airbag inflators of the kind fitted to the subject vehicle prior to the date of manufacture of the subject vehicle; moreover, “any question of the applicant’s knowledge of a relevant defect prior to the manufacture of the vehicle is not raised on the pleadings and is not an issue in the proceeding.[36]
Some of the applicants’ contentions summarised in the previous paragraph might be accepted. There is a clear difference as to whether, at a given point in time, there existed a defect in the airbag inflator of the kind fitted to the subject vehicle and whether, at a given point in time, the applicants had knowledge of such a defect (if it existed). However, the applicants’ contentions fail to take account of par 10(c)(iii) of the defence of the first applicant and par 10(e)(iii) of the defence of the second applicant.[37] Specifically, each applicant had alleged, in response to par 10 of the Commission’s statement of claim, that it was not aware of and was unable to identify the alleged defect in the driver’s front airbag inflator at the time of supply by the manufacturer of that component. That particular allegation was made in support of the first and second applicants’ pleading that they would not have been liable in damages to the Commission (if the Act had never existed).[38] Each applicant, by its own pleading, had raised its state of knowledge, and asserted absence of knowledge, of the relevant defect. I fail to see how the applicants can now be heard to argue that the applicants’ knowledge of the alleged defect prior to the manufacture of the vehicle is not raised on the pleadings.
Moreover, as her Honour noted in the extract from her reasons set out in [36] above, senior counsel for the applicants conceded in oral argument that an issue to be decided in the proceeding was whether an airbag with a propensity for moisture intrusion is defective from the time it is manufactured, or only from the time that the particular airbag component is degraded and the defect manifests.
An additional contention in relation to the discovery order made in respect of documents in category (b) is that Huntingford A/AsJ erred in law in failing to provide any or any adequate reasons for ordering discovery of documents within that category.[39]
I would first note the limits on discovery ultimately required in relation to documents in category (b), as for those in category (a), explained in [34] above. Further, as found by her Honour,[40] the subject vehicle was manufactured (by the second applicant) in approximately February 2005. The particular airbag was manufactured by Takata Corporation in January 2005. The airbag inflator was manufactured between June and December 2004. It was reasonable for her Honour to order discovery of documents brought into existence prior to February 2005. As to a start date for the period of discovery, I consider that it was reasonable for her Honour not to specify an exact date because she had already limited discovery to documents relating to the particular type of airbag installed in the subject RAV4 vehicle. As observed by her Honour, the effect of that limitation was that discovery in category (b) would not be oppressive.
The reasons for her Honour’s order for discovery of the documents in all of categories (a) to (d) of the Commission’s application were set out in pars [60] to [64] of her Honour’s decision. It may be that her Honour’s reasons in relation to category (b) were ‘submerged’ in her consideration of the group of four categories. Nonetheless, whether or not the reasons given were sufficient in relation to category (b), considered in isolation, I am satisfied that the documents in category (b) were relevant generally, and for the same reason identified in [38] above. The applicants have not established that Huntingford A/AsJ erred in law or that her decision was wrong.
In relation to the contested order for discovery of documents in categories (e), (f) and (g), the applicants contend that the orders were based on a finding that: “the significance of March 2000 is that the plaintiff says that that is the date from which Takata Corporation was aware that the relevant inflators were not performing as they should. On that basis ... this category, with the restricted date ranges, is appropriate”.[41]
The Commission amended its application, in relation to discovery of documents in categories (f) and (g), to insert ‘March 2000’ as the start date for the relevant discovery period, consistent with its application for discovery of documents in category (e).[42]
In support of their contention that Huntingford A/AsJ erred in law, or that her Honour’s discretion miscarried, the applicants raise similar contentions to those summarised in [37]. Specifically, they contend that there was no allegation that the applicants had knowledge of a relevant defect in airbag inflators of the kind fitted to the subject vehicle prior to the date of manufacture of the vehicle,[43] and that any question of the applicant’s knowledge of the relevant defect prior to the manufacture of the vehicle was not raised on the pleadings and was not an issue in the proceeding.[44] Somewhat irritatingly, the applicants have again overlooked the allegation made by both of them in their defences that they were not aware of and were unable to identify the alleged defect in the driver’s front airbag inflator at the time of supply by the manufacturer of that component. I refer to and repeat my observations in [38] above.
The applicants also contend, inter alia, that her Honour “did not make a finding that the categories of documents were relevant to an issue in the proceeding”; consequently, that Her Honour failed to provide reasons or adequate reasons to support the discovery order made.[45] It is difficult to know whether the essential contention is that the documents in categories (e) (f) and (g) are not relevant to facts in issue, or whether the contention is that her Honour erred in setting March 2000 as the starting point for the discovery obligation. Because the categories of documents are clearly relevant to the facts in issue on the pleadings, I will assume that the contention is that her Honour erred in setting a start date which was supported only by bare assertion in an affidavit sworn by the solicitor for the Commission. My assumption is consistent with the additional ground,[46] that discovery of documents in categories (e), (f) and (g) prior to the date of manufacture of the subject vehicle is unjustified and oppressive to the applicants.
It is correct that the decision to fix March 2000 as the start date for the applicants’ discovery obligations was not evidence-based. However, the logic in choosing a date approximate to that time was sound insofar as there must have been a time when the Takata Corporation first became aware of possible defects in the airbags manufactured by it, and then communicated with the applicants (or at least one of the applicants) in relation to that issue. One would expect that further written communications would then have been generated between the applicants. If fixing the start date for the discovery period as March 2000 is ‘going too far back in time’, such that there were then no relevant discoverable documents in categories (e), (f) and (g), then there would be nothing to discover. The applicants themselves would be in the best position to know and inform the court as to the first relevant written communication or other document in categories (e), (f) and (g). However, neither applicant has proposed an alternative start date for the discovery period.
In relation to discovery orders made by Huntingford A/AsJ, the applicants have not established any legal error or error in the exercise of her Honour’s discretion. Nor in my view were the orders made by her Honour attended with sufficient doubt as to warrant the granting of leave for their reconsideration on appeal. It follows that leave should be refused.
Conclusion
Leave is refused in relation to both aspects of the application for leave to appeal.
I would propose to make an order for costs against the applicants. However, I will reserve costs, and give the parties the opportunity to be heard.
The Commission should file minutes of order to reflect the following:
1.The application for leave to appeal be dismissed.
2.Costs reserved.
3.If the applicants contest the making of a costs order against them, they have leave to file submissions within 14 days as to why a costs order should not be made consequent upon the dismissal of their application.
4.The Commission have leave to file answering submissions within a further 14 days.
5.The costs issue be determined on the papers upon receipt of submissions.
--------------------

[1] Motor Accidents (Compensation) Commission v Toyota Motor Corporation Australia Ltd and anor [2022] NTSC 39 (“Decision”).

[2]See Supreme Court Act 1979, s 53(2) and s 53(3).

[3] Statement of claim, par 7.

[4] April 9, 2020.

[5] See SCR 13.02 (1)(a).

[6]Statement of Claim, par 10, particular (a).

[7] Statement of Claim, par 10, particular (b).

[8] Statement of Claim, par 10, particular (d).

[9] Under the heading “Particulars of Assumed Liability”, particular IV.

[10] The Australian Consumer Law is contained in Sch 2 to the Competition and Consumer Act 2010 (Cth).

[11]Statement of Claim, par 11, particular (c).

[12]Australian Consumer Law, Part 3 – 2, Division 1 – Consumer guarantees, Subdivision A – Guarantees relating to the supply of goods.

[13] See J W Carter: Contract Law in Australia (7^th edition), LexisNexis Butterworths, 2018, at [11-26].

[14] Statement of Claim, par 11, particular (g).

[15] See Grant ‘Civil Procedure Northern Territory’, Presidian Legal Publications, par [5-13-106].

[16] That pleading is contained in par 6 of the defences of both defendants.

[17]See par 7(c) and 7(d) of the defences of both defendants.

[18] Decision [16]

[19] Par 1, summons filed 1 December 2021.

[20]Decision [27], [16].

[21] Decision [30].

[22]Decision [31].

[23] Decision [33], [34].

[24] Decision [34].

[25]Decision [20], referring to Integral Home Loans Pty Ltd v Interstate Wholesale Finance Pty Ltd [2006] NSWSC 1464 at [6].

[26] Decision [18] – [19], where her Honour referred to a number of authorities, including Tepko Pty Ltd and ors v Water Board (2001) 206 CLR 1 at 55 [168], per Kirby and Callinan JJ.

[27]Skycity Darwin Pty Ltd v Groote Eylandt Aboriginal Trust Incorporated (Statutory Manager Appointed) [2015] NTCA 4 at [4], citing Mercantile Mutual Insurance (Australia) Ltd v Household Financial Services Ltd, unreported, delivered 22 May 1997 in matter 5967 of 1994, Supreme Court of Victoria, Court of Appeal, per Winneke P, Hayne JA and Ashley AJA agreeing.

[28] Nationwide News Pty Ltd (t/as) Centralian Advocate and Ors v Bradshaw and Anor (1986) 41 NTR 1 at 8, per O’Leary CJ, at 11 - 12, per Nader J, at 18 - 19, per Asche J; Wright Engineers Pty Ltd and Anor v BTR Trading (Qld) Pty Ltd and Anor [1987] NTCA 4; Rogerson v Law Society of the Northern Territory (1993) 88 NTR 1 at 5, per Asche CJ; Northern Territory of Australia v GRD Kirfield Ltd & Anor [2003] NTCA 01; Iskandar v Merpati Nusantera Airline (No. 2) (2006) 16 NTLR 22 at [16]; Northern Territory of Australia v Roberts [2009] NTCA 5 at [2]; Skycity Darwin Pty Ltd v Groote Eylandt Aboriginal Trust Incorporated (Statutory Manager Appointed) [2015] NTCA 4 at [4].

[29] Affidavit of Mark Cameron Spain sworn 14 June 2022, par 18.

[30] Categories (f) and (g) were amended in the course of argument before her Honour to include documents dating from March 2000, bringing those categories in line with the period specified in category (e) – Decision at [70].

[31] Decision [61]. The inflator was referred to in evidence as a ‘Beta inflator’ or ‘Takata Smokeless Driver Inflator’.

[32] Decision [62].

[33]Affidavit Mark Cameron Spain, par 20.

[34] Par 10, particular (b) of the Commission's statement of claim alleged that: “The discharge of metal fragments from the airbag upon deployment resulted from a defect in the airbag – specifically moisture intrusion into the airbag mechanism which made the inflator assembly rupture and discharge metal fragments upon airbag deployment”. In response, par 10 (c)(ii) of the defence of the first applicant contained the following pleading: “the alleged defect in the driver's front airbag inflator did not exist at the time the driver's front airbag inflator was supplied by the manufacturer of that component; …”. Further, as the first applicant pleaded in par 10(c)(iii): “it was not aware of and was unable to identify the alleged defect in the driver's front airbag inflator at the time the driver's front airbag inflator was supplied by the manufacturer of a component”. Par 12(c)(ii) of the defence of the second applicant was the same as par 10 (c)(ii) of the defence of the first applicant. Par 12(e)(iii) of the defence of the second applicant was in identical terms to par 10(c)(iii) of the defence of the first applicant. [italic emphasis added]

[35] Her Honour referred to transcript, 21/2/2022, p 42.

[36] Affidavit Mark Cameron Spain, par 20 (f).

[37] The extract of relevant pleadings is at footnote 34 above.

[38]Defence of first applicant, par 10(d); Defence of second applicant, par 10(f).

[39] Affidavit Mark Cameron Spain, par 20(h).

[40] Decision [64].

[41]Affidavit Mark Cameron Spain, par 21, referring to Decision [70].

[42] Decision at [70].

[43] Affidavit Mark Cameron Spain, par 21(e).

[44] Affidavit Mark Cameron Spain, par 21(g).

[45] Affidavit Mark Cameron Spain, par 21 (e) and (g).

[46] Affidavit of Mark Cameron Spain, par 21(h).