FEDERAL COURT OF AUSTRALIA Australian Automotive Repairers' Association (Political Action Committee) Inc v NRMA Insurance Limited (No 3) [2004] FCA 65 AUSTRALIAN AUTOMOTIVE REPAIRERS' ASSOCIATION (POLITICAL ACTION COMMITTEE) INC v NRMA INSURANCE LIMITED (ACN 000 016 722) N 953 OF 2002 LINDGREN J 4 FEBRUARY 2004 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 953 OF 2002 BETWEEN: AUSTRALIAN AUTOMOTIVE REPAIRERS' ASSOCIATION (POLITICAL ACTION COMMITTEE) INC APPLICANT AND: NRMA INSURANCE LIMITED (ACN 000 016 722) RESPONDENT JUDGE: LINDGREN J DATE OF ORDER: 4 FEBRUARY 2004 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The applicant have leave to amend the existing further amended statement of claim as proposed in pars 4A, 4B, 21(k), 27, 35, 40, 42 (a), (ca) and (ga) and 44 of the draft second further amended statement of claim handed up in court. 2. Leave to amend the existing further amended statement of claim as proposed in pars 4C, 21(m), 36A, 41A, 42(ha) and (hb) (and the heading preceding them) and 45A of the draft second further amended statement of claim handed up in court be refused. 3. The applicant file and serve a second further amended statement of claim accordingly by tomorrow. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 953 OF 2002 BETWEEN: AUSTRALIAN AUTOMOTIVE REPAIRERS' ASSOCIATION (POLITICAL ACTION COMMITTEE) INC APPLICANT AND: NRMA INSURANCE LIMITED (ACN 000 016 722) RESPONDENT JUDGE: LINDGREN J DATE: 4 FEBRUARY 2004 PLACE: SYDNEY REASONS FOR JUDGMENT (No 3) (application for leave to amend further amended statement of claim) 1 The applicant is an incorporated association of motor vehicle repairers. The respondent is an insurer. The applicant claims that the respondent is engaging in the form of exclusive dealing that is defined in s 47(7) of the Trade Practices Act 1974 (Cth) ('the TP Act'). It claims that the respondent refuses to provide certain services to its insureds for the reason that those insureds have not agreed to acquire repair services from repairers who are on its list of 'Preferred Smash Repairers'. The services allegedly refused are timely assessment of damage to the vehicle, timely authorisation of repairs, and payment of towing expenses. 2 On this, the second day of the trial, and without any advance notice, the applicant seeks leave to file a second further amended statement of claim. 3 The proceeding commenced on 16 September 2002 when the applicant filed its application supported by a statement of claim. The respondent filed a notice of motion on 10 October 2002 seeking an order that the proceeding be dismissed pursuant to O 20 r 2 of the Federal Court Rules, or, in the alternative, an order that the statement of claim be struck out pursuant to O 11 r 16 of those Rules. 4 Following a hearing I delivered judgment on the motion on 20 December 2002 (Australian Automotive Repairers Association (Political Action Committee) Inc v NRMA Insurance Limited [2002] FCA 1568.) So far as relevant, I ordered that the statement of claim be struck out, that the applicant file and serve any amended statement of claim by 31 January 2003, and that. the applicant pay two-thirds of the respondent's costs. 5 The amended statement of claim was filed on 31 January 2003. 6 The respondent filed a further notice of motion on 7 April 2003 seeking an order that the amended statement of claim be struck out pursuant to O 11 r 16. The parties filed and served written submissions on the motion. In the course of various directions hearings, I encouraged counsel for the parties to confer with a view to identifying points of disagreement and reaching a common understanding as to the nature of the case which the applicant wished to make, with a view to avoiding an unnecessary hearing of the motion. 7 On 15 August 2003, by consent, I granted the applicant leave to file and serve a further amended statement of claim. Following the making of submissions on costs, I ordered the applicant to pay 90 per cent of the respondent's costs of the motion. The further amended statement of claim was filed on 15 August 2003. 8 Until today the relevant pleading of the applicant's case has been that found in that further amended statement of claim. 9 The draft second further amended statement of claim now handed up in court includes a number of discrete proposed amendments. 10 The hearing was adjourned early before the normal luncheon adjournment to allow counsel for the respondent to consider the proposed amendments. As a result the respondent does not object to some of them but does object to those relating to what might be described as the 'Lifetime Guarantee' point. 11 The expression 'Lifetime Guarantee' would be defined in the proposed second further amended statement of claim as a document issued by or for the respondent, evidencing an obligation assumed by the respondent to the insured for the quality of the repairs made by a motor vehicle repairer. 12 In summary, the amendments would add the giving of the Lifetime Guarantee to the other services which the respondent allegedly refuses to supply unless an insured deals with one of its Preferred Repairers. 13 It is true, as counsel for the applicant submits, that in the affidavit material filed and served on the part of both the applicant and the respondent there are various references to lifetime guarantees. There is, however, a substantial difference between references in evidence to a matter, on the one hand, and a pleading which makes it clear to a respondent what case it is required to meet, on the other. This is true in all cases but the distinction perhaps derives added forced in a case such as the present one, in which, over a long period, the respondent has emphasised the need for it to have a clear statement of the nature of the claim put by the applicant. 14 Pleadings alleging contravention of Part IV of the TP Act are frequently productive of difficulty and it is important in such a case that an applicant consider carefully, and state precisely, the nature of the contravention it alleges. 15 Senior counsel for the respondent has taken instructions and points to a number of aspects of prejudice which he says his client would suffer as a result of the late raising of the Lifetime Guarantee point. He observes that, if this particular claim had been made in the existing further amended statement of claim: · it would have been possible for the respondent to attempt to identify and proof the telephone operators with whom Mr Elmassian, a repairer witness called by the applicant, allegedly had the conversations referred to in paragraph 5 of his affidavit; · scripts for use by telephone operators, in addition to those back to April 2000 which are already in evidence, may well have been available; · sampling evidence of conversations could have been obtained which would go to the likelihood of telephone operators departing from the scripts which they are given; and · evidence could have been led from existing telephone operators. 16 I cannot be certain that the respondent would or would not suffer prejudice if the particular amendment in question were allowed, but I am not satisfied that it would not. Indeed, there is reason to think that it might well do so. In these circumstances I refuse leave to amend to raise the Lifetime Guarantee point. 17 The result is that leave to amend is granted in so far as it relates to paragraph 4A, 4B, 21(k), 27, 35, 40, 42 (a), (ca) and (ga) and 44 of the proposed second further amended statement of claim, and leave is refused insofar as it relates to paragraphs 4C, 21(m), 36A, 41A, 42(ha) and (hb) (and the heading preceding them), and 45A of the proposed further amended statement of claim. I certify that the preceding seventeen (17 numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren. Associate: Dated: 9 February 2004 Counsel for the applicant: Mr B Levet and Dr R O'Hair Solicitor for the applicant: Mr P R Glover Counsel for the respondent: Mr F M Douglas QC and Mr S T White Solicitor for the respondent: Blake Dawson Waldron Date of Hearing: 4 February 2004 Date of Judgment: 4 February 2004