New South Wales District Court CITATION: Jones v Premier Automotive Group Australia Pty Ltd [2008] NSWDC 262 HEARING DATE(S): 8 and 11 August 2008 JUDGMENT DATE: 13 August 2008 JURISDICTION: Civil JUDGMENT OF: Levy SC DCJ 1. The Plaintiff is granted leave to file an Amended Statement of Claim. DECISION: 2. The First Defendant's Notice of Motion filed on 27 June 2008 is dismissed. 3. The Second Defendant's Notice of Motion filed on 4 August 2008 is dismissed. 4. The parties are to bear their own costs in respect of each motion. CATCHWORDS: PRACTICE AND PROCEDURE – Discontinuance – whether on transfer of claim from Consumer, Trader and Tenancy Tribunal to the District Court and subsequent filing of a Statement of Claim in District Court omitting a defendant named in the earlier proceedings constitutes a discontinuance notwithstanding non-compliance with the discontinuance procedure provided by rule 12.1 of Uniform Civil Procedure Rules 2005 - COSTS – consequences of transfer of proceedings from the Consumer, Trader and Tenancy Tribunal to District Court in the absence of cost order by Tribunal - INCOMPLETE PARTICULARS – whether proper basis for strike out application in this instance. Consumer, Trader and Tenancy Tribunal Act 2001 [NSW], s 23, s 53 LEGISLATION CITED: Civil Procedure Act 2005 [NSW], s 56, s 58, s 63 Uniform Civil Procedure Rules 2005 [NSW], r 6.24, r 12.1 Gunns Limited v Marr [2005] VSC 251 CASES CITED: Sims v Wran [1984] 1 NSWLR 317 White v Overland [2001] FCA 1333 Richard Jones (Plaintiff) PARTIES: Premier Automotive Group Australia Pty Ltd trading as Land Rover Australia (First Defendant) Purnell Motors Pty Ltd (Second Defendant) FILE NUMBER(S): 4712 of 2007 Mr R Higgins (Plaintiff) COUNSEL: Ms C Spruce (First Defendant) Mr S Gregory (Second Defendant) Shane Maloney, Stacks Coffs Harbour (Plaintiff) SOLICITORS: Clinch Long Letherbarrow Lawyers (First Defendant) Bamford Associates, Lawyers (Second Defendant) JUDGMENT Introduction 1. Three interlocutory applications arise for determination. Background Facts 2. The proceedings relate to the purchase by the Plaintiff of a Land Rover vehicle in 2004. Additional driving lights were installed on the vehicle and these were linked to the vehicle's main engine management power supply circuit. It is alleged that this installation subsequently caused technical problems which have resulted in the Plaintiff suffering loss and damage. The Plaintiff initially sought to pursue his consumer rights in the Consumer, Trader and Tenancy Tribunal. Proceedings were commenced in that Tribunal and those proceedings were then transferred to the District Court of NSW. History of proceedings in Consumer Trader and Tenancy Tribunal 3. On 3 October 2006 the Plaintiff initiated the original proceedings by an application to the Motor Vehicle Division of the Consumer, Trader and Tenancy Tribunal ["CTTT"]. Those proceedings were allocated the proceedings number MV 06/49249. The parties to the original proceedings were: (a) Richard Jones, the Plaintiff in this Court. (b) Premier Automotive Group Australia Pty Ltd trading as Land Rover Australia, the distributor of the vehicle. (c) Purnell Motors Pty Ltd, the dealer that sold the vehicle. 4. On 10 September 2007 the CTTT made an order pursuant to s.23 of the Consumer, Trader and Tenancy Tribunal Act, 2001 adjourning the CTTT proceedings and transferring them to the District Court without any order for costs being made in relation to the CTTT proceedings. I was informed by the parties that the reason for the transfer to the District Court was the potential quantum of the claim and the nature of the relief sought. 5. For present purposes the nature of the procedural issues raised in the motions before the Court do not require an analysis of the details of the original transaction. History of proceedings in the District Court 6. On 10 January 2008 the parties consented to a procedural timetable of directions aimed at advancing the matter. 7. On 17 April 2008 the Judicial Registrar gave further directions to the parties. 8. Amongst the previous procedural orders made was an order that the Plaintiff file and serve a Statement of Claim by 8 May 2008. 9. The Court file shows that the Plaintiff's Statement of Claim was filed on 19 May 2008. There appears to be no issue that after the order was made transferring the proceedings to this Court, the Plaintiff intentionally named only one defendant in his Statement of Claim, namely, Purnell Motors Pty Ltd. The Plaintiff's intention was to discontinue the proceedings against Premier Automotive Group Pty Ltd. To this end, the name of that party was, using the terminology used in the course of argument, either deleted or not incorporated into the Plaintiff's Statement of Claim in this Court. 10. One of the motions now before the Court was an application by the Plaintiff to seek leave to file an Amended Statement of Claim to add Premier Automotive Group Australia Pty Ltd to the proceedings notwithstanding an earlier purported discontinuance. 11. The earlier decision of the Plaintiff to either delete or not include Premier Automotive Group Australia Pty Ltd trading as Land Rover Australia Pty Ltd in the Statement of Claim has given rise to a motion by Premier from Group Australia Pty Ltd to seek its costs thrown away due to the Plaintiff's earlier and purported discontinuance on the premise that the purported discontinuance had been effective. 12. The procedural history of the matter, notably concerning the particulars, has also given rise to a strike-out motion by Purnell Motors Pty Ltd. These three interlocutory applications fall for determination in this application. Three Notices of Motion for determination 13. The first motion was filed on behalf of Premier Automotive Group Australia Pty Ltd on 27 June 2008 and sought the following orders:- "(1) Pursuant to Section 98 of the Civil Procedure Act (NSW) 2005 , the Plaintiff pay the Defendant's costs thrown away in the amount of $32,607.08 plus GST within 21 days being PAGA's costs from the date the proceedings were commenced in the Consumer Trading and Tenancies Tribunal to the date of the show cause hearing before this Honourable Court on 13 June 2008. (2) In the alternative, (a) the Plaintiff pay the costs referred to in paragraph 1 as agreed or assessed; and (b) if the costs go to assessment, the Plaintiff pay the costs as assessed forthwith. (3) The Plaintiff pay PAGA's costs of this motion on a full indemnity basis." 14. The second motion was filed on behalf of Purnell Motors Pty Ltd on 4 August 2008 and sought the following orders:- "(1) Pursuant to rule 14.28 of the Uniform Civil Procedure Rules 2005 , further or in the alternative section 61 of the Civil Procedure Act 2005 , the Statement of Claim be struck out. (2) Such further or other (order) as to the Court seems fit. (3) Costs." 15. The third motion was filed on behalf of the Plaintiff on 4 August 2008 and sought the following orders:- "(1) That pursuant to s 64 of the Civil Procedure Act leave be granted to file an amended Statement of Claim. (2) That pursuant to Uniform Civil Procedure Rules r 6.24 leave be granted to join Premier Automotive Group Australia Pty Ltd as a defendant in these proceedings. (3) That costs of this application be costs in the proceedings." 16. For convenience, and in logical sequence, the third Motion was heard first, and this was then followed by a hearing of the second and the first motions. Disposition of issues The first issue 17. The first issue to be determined is whether the Plaintiff should be given leave to file an Amended Statement of Claim. The ambit of the proposed amendments related to adding an alternative prayer for relief, namely, the return of the vehicle and a refund of the purchase price (by adding a new paragraph 2) as well as pleading a claim against Premier Automotive Group Pty Ltd (by adding paragraphs 23 to 48). 18. Other than costs I see no prejudice to the Defendants in granting the Plaintiff leave to amend the Statement of Claim as sought. In particular, the claim sought to be pleaded against the Premier Automotive Group Australia Pty Ltd is not barred and the Plaintiff expresses the desire to join that party if this be necessary in the circumstances. I have concluded that in the interests of the quick, just and cheap disposal of the proceedings also having regard to the interest of doing justice between the parties and in order to determine all matters of dispute between the parties in the proceedings the Plaintiff should be given leave to amend as claimed and I grant leave pursuant to rule 6.24 of the Uniform Civil Procedure Rules, 2005 and sections 56 and 58 of the Civil Procedure Act, 2005. The second issue 19. The second issue to be determined is whether the Plaintiff's proceedings have in fact been discontinued against Premier Automotive Group Pty Ltd by reason of the deletion of the name of that party from the Statement of Claim. This gives rise to a need to examine whether the Plaintiff had in fact earlier discontinued his claim against Premier Automotive Group Australia Pty Ltd. 20. On behalf of Premier Automotive Group Pty Ltd it is argued that the Plaintiff had discontinued his claim against that party. It is argued that this was so because that party's name has been omitted from the Statement of Claim as filed and, having regard to the correspondence that has passed between the parties, this omission was as a result of a deliberate election rather than due to inadvertence. This argument has some force. However, against this argument and on behalf of the Plaintiff it is submitted that any such discontinuance should be characterised as ineffective because it was not effected in compliance with rule 12.1 of the Uniform Civil Procedure Rules, 2005. Rule 12.1 provides: " 12.1 Discontinuance of proceedings (1) The plaintiff in any proceedings may, by filing a notice of discontinuance, discontinue the proceedings, either as to all claims for relief or as to all claims for relief so far as they concern a particular defendant: (a) with the consent of each other active party in the proceedings, or (b) with the leave of the court. (2) A notice of discontinuance: (a) must bear a certificate by the plaintiff, or by his or her solicitor, to the effect that the plaintiff does not represent any other person, and (b) except where it is filed with the leave of the court, must be accompanied by a notice from each party whose consent is required by subrule (1) to the effect that the party consents to the proceedings being discontinued in accordance with the notice of discontinuance. (3) If any such consent is given on terms, those terms are to be incorporated in the notice of consent. (4) If any party has not been served with the originating process, the plaintiff must file an affidavit to that effect. (5) For the purposes of this rule, proceedings on a cross-claim are taken to be different proceedings to the proceedings on the originating process and to proceedings on any other cross-claim." 21. I construe rule 12.1 to mean that a discontinuance of proceedings is permitted by filing a notice of discontinuance either by consent or by leave. As no notice was filed I find that the Plaintiff's purported discontinuance was not a discontinuance of his action against Premier Automotive Group Pty Ltd and insofar as the Plaintiff purported to discontinue against that party such purported discontinuance was ineffective. 22. Whilst it could be argued that the omission of Premier Automotive Group Australia Pty Ltd constituted an irregular discontinuance within the meaning of section 63 of the Civil Procedure Act, 2005, having regard to the Plaintiff's expressed intention to proceed against that party, as is evident from the ambit of the Amended Statement of Claim, and having regard to the ultimate purpose rule embodied in section 56 of the Civil Procedure Act, 2005, recognising that the Plaintiff could simply issue a fresh Statement of Claim, in the circumstances I decline to treat the omission as an irregular discontinuance. If I am wrong in coming to that view I find that Premier Automotive Group Australia Pty Ltd is an appropriate party to be joined for the purpose of determining all matters in dispute in the proceedings and I confirm that joinder pursuant to rule 6.24 of the Civil Procedure Rules, 2005. The third issue 23. The third issue to be determined is whether the Plaintiff's Statement of Claim either in its original or amended form should be struck out. 24. The Plaintiff has indicated that it no longer relies upon the relief claimed under the Trade Practices Act, 1974 (Cwth) as claimed in paragraphs 1 – 3 of the Amended Statement of Claim. The Second Defendant's strike out motion is based on the allegedly inadequate state of the particulars. Whilst that argument concerning particulars has some force it must be remembered that these proceedings were not commenced in the conventional manner that a party would in ordinary circumstances approach the formulation of proceedings based on expert evidence and a pleading linked to an expert report. Rather, the Plaintiff commenced with an application in the CTTT and subsequently was ordered to file a Statement of Claim following transfer to this Court at a time when he was apparently without the benefit of an expert liability report. 25. In resisting the strike out application the Plaintiff has indicated he is in the process of obtaining an expert report as a precursor to revisiting the particulars which should result in refining if not re-defining the alleged breaches and the extent of the damages claimed. In those circumstances I am of the view that it would inappropriate to accede to the Second Defendant's strike out application. To do so would only result in recommencement which is not in the interests of containing costs or securing a quick, just and cheap disposal of the case. 26. The basis of the strike out application is the complaint by the Second Defendant as to the state of the particulars provided by the Plaintiff. The particulars supplied are said to be inadequate and insufficient to identify the case the Second Defendant is required to meet. See Sims -v- Wran [1984] 1 NSWLR 317 at 321; White -v- Overhand [2001] FCA 1333 and Gunns Limited -v- Marr [2005] VSC 251. In a conventional case where there has been no transfer from a Tribunal as was the case here, there may be some force to the argument in favour of a strike out motion succeeding based on the state of the particulars. However, in this case, having regard to the manner of commencement I believe some further latitude should be given to the Plaintiff to identify and particularise the case to be mounted against the defendants. The fourth issue 27. The fourth issue to be determined is the costs consequences of the Plaintiff's purported discontinuance against Premier Automotive Group Australia Pty Ltd. Given that I have found that the proceedings have not in fact been discontinued against Premier Automotive Group Pty Ltd I am of the view that it would be inappropriate to accede to the request for a costs order against the Plaintiff in connection with the earlier purported discontinuance against that party. Accordingly, in the absence of any costs order made by the Tribunal at the time of transfer, the question of costs incurred by that party must remain to be determined by the end result of the case after a hearing on the merits. 28. In this regard given the wide discretionary power in the costs provisions of s.53 of the Consumer, Trader and Tenancy Tribunal Act, 2001 and related regulations which enables the Tribunal to make cost orders and given that the Tribunal made no cost order on transferring the proceedings, the costs in relation to the Tribunal stage of the proceedings remain open for argument. Since I have found there has been no effective discontinuance, the issue of costs in relation to the proceedings in the Tribunal does not yet arise for determination. Orders 29. In respect of the first motion filed on 27 June 2008 and brought by Premier Automotive Group Australia Pty Ltd I order: (a) That the First Defendant's motion be dismissed. (b) Each party bear their own costs of the motion. 30. In respect of the second motion filed on 4 August 2008 and brought by Purnell Motors Pty Ltd: (a) The Second Defendant's motion seeking to have the Plaintiff's Statement of Claim (including the Amended Statement of Claim) struck out is dismissed. (b) Each party pay their own costs of the Motion. 31. In respect of the third Motion filed on 4 August 2008 brought by the Plaintiff: (a) I grant leave for the Plaintiff to file an Amended Statement of Claim to include a claim pleaded against the First Defendant Premier Automotive Group Australia Pty Ltd. (b) Each party pay their own costs of the Motion. Directions 32. The matter was due to be listed for directions on 12 August 2008. In advance of that date I ordered that the appointed directions hearing date be vacated. Having reviewed the status of the matter having regard to the potential for the matter to become unduly complex and consequently, disproportionately costly to parties, I have formed the view that the parties should attempt to resolve the matter by mediation at an early stage. Having regard to the matters ventilated during the hearing of the three motions I make the following directions to facilitate efficiency of the further progress of the matter: (a) The Plaintiff is to serve any expert opinions on the issues of liability and damages on or before Friday 19 September 2008. (b) The Plaintiff is to finalise and provide to the Defendants any further particulars of alleged liability breaches and claimed damages, including, if required, any further proposed amendments to the Amended Statement of Claim on or before Friday 3 October 2008. (c) The Defendants are to request any further and better particulars of any further proposed Further Amended Statement of Claim within 14 days of receipt of such a document from the Plaintiff and the Plaintiff is to provide such further and better particulars within 14 days of being requested to do so. (d) The Defendants are to serve any expert reports in response to any expert report served by the Plaintiff on or before Friday 31 October 2008. (e) The parties are to prepare and finalise a fully annotated Scott Schedule detailing the position of the respective parties on all matters remaining in dispute between them on or before Friday 21 November 2008. (f) The parties are to convene and attend a mediation of the matter by Friday 19 December 2008 and they are to cooperate to use their bona fide endeavours to try and reach a settlement of the proceedings and to facilitate this object they are to: (i) agree upon a named mediator, a venue, date and time for the mediation and in the event the parties cannot agree on these matters within 14 days of today's date, the matter is to be re-listed before me for the purpose of appointing a court nominated mediator; (ii) ensure the attendance at the mediation of all parties with an interest in the litigation; (iii) in the event there are insurers involved in the defence of the Plaintiff's claim, ensure the attendance of the respective insurance claims officers, with full authority to negotiate settlement up to and including the amount claimed by the Plaintiff; (iv) bear their own costs of the proposed mediation and equally share the cost of the services of the mediator. (g) In making the order for mediation I do not intend that mediation be delayed or deferred until 19 December 2008 if it is convenient for the parties to have the claim mediated at an earlier date. (h) The matter is listed for a Directions Hearing before the Judicial Registrar on 9 February 2009. 33. In addition the above orders I grant liberty to apply to the Court on 3 days notice should it become necessary to obtain further orders or directions to facilitate the orders I have given. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.