Capic v Ford Motor Company of Australia Limited

1. Vacate Order 2 made on 14 December 2017. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

PERRAM J: 1 On 14 June 2018 I vacated the trial of this matter which had been fixed for hearing for three weeks commencing on 3 December 2018. These are my reasons for doing so. 2 I vacated the trial dates because (a) there is no reasonable possibility that the case will be ready for trial by those dates; and, (b) because there are other litigants in this Court waiting for trial dates. 3 As of 14 June 2018 the Applicant had open a number of matters requiring further attention, including: (a) revisiting the topic of the discovery to be provided by the Respondent in Australia; (b) progressing the examination of the documents produced on discovery in the US proceedings. There are more than 300,000 of these documents on a hard drive but technical computing issues have thus far kept the Applicant's solicitors from accessing the contents of that drive. These issues are expected to be resolved soon; (c) progressing the preparation of the Applicant's expert evidence (not yet finalised but apparently underway); (d) the making of a common fund application; and (e) the making of an application in relation to the opt-out notices. 4 When the matter was last before the Court on 1 May 2018 I was informed that matters (a)-(c) concerning the Applicant's evidence would be completed by 8 June 2018. At that time I expressed scepticism that this was feasible but upon assurances that it would be done I was content to see, if what appeared to me to be impossible, could nevertheless be brought to pass. 5 As events have transpired it has not proved possible to complete (a)-(c) despite a new firm of solicitors coming into the matter to assist the Applicant's current solicitors. Since then it is apparent that a large amount of work has been done and that there has been a most assiduous attempt to achieve the preparation of the case. Rome, however, was not built in a day and an entire class action cannot be strapped up in five weeks. Mr Pike SC, for the Applicant, submitted that even though the Applicant's efforts to meet the 8 June 2018 deadline had come up short nevertheless the Court should not conclude, at this stage, that a trial commencing on 3 December 2018 was unachievable. The question then becomes whether Rome can be built in a week. Whilst I think it likely that the Applicant can get her house in order by the trial date of 3 December 2018 that is not the question. The issue is instead whether the case as a whole can be prepared by that date. The case has two parties to it and these include Ford Australia. It will need to respond to all of the material in (a)-(c). Further, the discovery issues may well impact upon the engineering issues and there remains, long-dormant but nevertheless extant, the small matters of the common fund and opt-out notice applications which have not yet even been scheduled for hearing. 6 Mr Pike submitted that I should postpone the decision whether to vacate the trial until 23 July 2018 when the Applicant will apply for orders that she be permitted to amend her pleadings, to seek yet further discovery from the Respondent in Australia and to restrain the Respondent, in various ways, from communicating with Group Members. It would be clearer at that time, so Mr Pike submitted, how far the Applicant had progressed in her preparatory steps and whether the vacation of the trial was, in truth, necessary. 7 I am sceptical now that all of the preparatory steps will be complete by 23 July 2018 just as I was previously sceptical that they would be concluded by 8 June 2018. In particular, the fact that the Applicant has not yet obtained access to the documents discovered in the US proceedings makes it unlikely that those documents will be accessed, considered and digested by 23 July 2018. 8 Even if, contrary to my view, the Applicant were to succeed in getting everything done by 23 July 2018, the trial would still have to be vacated. It would not be just to expect the Respondent to have to digest all of this material and respond to it by early November, a period of just over three months (I use early November because the Respondent's evidence must be served in time to allow the Applicant to reply prior to the trial commencing on 3 December 2018). 9 In that regard, it is to be noted that the Applicant has herself taken much longer than three months to deal with these various matters. Even with the new solicitors, it is unlikely that the Applicant's own necessary preparatory steps would be completed in just three months (making the assumption that work in earnest started as late as 1 May 2018). 10 But even assuming that this is wrong and that the Respondent could, if severely pressed, adequately respond to the Applicant's materials by early November by putting its lawyers and its own staff to the grinding wheel, I do not accept that it would be fair to require it to do so. This matter has been fixed for trial once already (for four weeks commencing on 11 June 2018) but this was vacated on 14 December 2017 when it was apparent it was not going to be ready. There have been many procedural failures on the Applicant's part since the case was commenced in May 2016. I will not catalogue them. It suffices to say that, at this late stage, to visit on the Respondent a large share of the procedural burden arising from the Applicant's own desultory attitude to this litigation would be unjust. 11 It follows that it is inevitable that on 23 July 2018 I would vacate the trial. I see no point waiting for that to occur when other cases are pending in this Court. 12 It was for these reasons that I vacated the hearing scheduled to commence on 3 December 2018. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram.