Toyota Motor Corporation Australia Limited & Anor v Motor Accidents

[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 (7th 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.

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

[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] HCA 19; (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.

1. [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] NTCA 124; (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] NTCA 3; (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'.

[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).

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