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TWO former Honda dealers, Brighton Automotive Holdings and Tynan Motors, have been granted permission by the Supreme Court of Victoria to serve legal documents on Honda Japan by electronic communication, effectively opening the way for Honda Japan to be joined to a pre-action discovery application launched by the former dealers.

The order means Honda Japan is required to produce documents showing what it knew about Honda Australia’s move to an agency distribution model at the time it was signing new dealership agreements with its dealers in Australia in July 2018.

As reported previously in GoAutoNews Premium, Honda Japan rejected legal documents sent from the Australian lawyer representing several discontinued Honda dealers in Australia on the basis that the documents were delivered by a courier which it said were not served in accordance with the Hague Convention.

Yutaro Kawabata, of the Tokyo-based law firm Nishimura & Asahi, told Evan Stents at HWL Ebsworth Lawyers that sending the documents by courier was not in accordance with the Hague Convention and therefore the documents were not properly served.

In a letter from Tokyo, which was sent by email and registered post, he also said it would also not be correct to serve the documents by “a postal service”.

Honda Australia is already a respondent in the pre-action discovery in the Supreme Court of Victoria but until now Honda Japan has been restricting being served with the court documents.

The action is to obtain discovery of key documents relating to what and for how long Honda Japan knew of the plans by Honda Australia to discontinue the agreements of key Australian dealers in preparation for adopting the agency sales model.

The letter from Tokyo in response was entered into evidence by the Senate Committee inquiring into the treatment of Australian car dealers by OEMs and is subject to the protection of the parliament.

It said that Honda Japan would not act on the documents because of the manner in which they were delivered.

But the Supreme Court of Victoria has taken a different view.

It has ordered that the documents be sent by email to Mr Kawabata’s email address and to Takahiro Hachigo, the CEO of Honda Japan and that the documents will have been deemed by the court to have been served five business days after they are sent.

According to the latest court order, the dealers say that they “believe they may have a right to seek relief against Honda Australia and Honda Japan pursuant … to the Australian Consumer Law (ACL) in respect of contraventions of s18 (misleading and deceptive conduct) and/or s21 (unconscionable conduct) of the ACL”.

The court documents say the claims “concern Honda Australia’s failure to disclose to the dealers (plaintiffs) the existence or contemplation of the strategic review at the time they entered into the motor vehicle dealership agreements”.

The claims against Honda Japan, it says, “are conceived on the basis that Honda Japan was involved in the strategic review and the decision to send the termination notices to the plaintiffs and/or that Honda Japan procured Honda Australia’s termination of the motor vehicle dealership agreements”.

By John Mellor

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