Carey-Hazell v Getz Bros & Co (Aust) Pty Ltd

[2006] HCATrans 553

[2006] HCATrans 553

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P9 of 2006

B e t w e e n -

KAREN CAREY-HAZELL

Applicant

and

GETZ BROS & CO (AUST) PTY LTD

First Respondent

PETER THOMPSON

Second Respondent

TREVOR NICHOLLS

Third Respondent

Application for special leave to appeal

Publication of reasons and pronouncement of orders

GUMMOW J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 5 OCTOBER 2006, AT 9.22 AM

Copyright in the High Court of Australia

__________________

GUMMOW J:   The Federal Court of Australia (Kiefel J) dismissed proceedings brought by the applicant seeking damages in relation to an allegedly faulty prosthetic heart valve. 

The applicant appealed to the Full Court of the Federal Court of Australia.  French J ordered her to provide security for the costs of the respondents in the sum of $150,000.  He noted among other factors the size of the appeal and its dependence on wide-ranging factual challenges.  A Full Court (Spender, Branson and Siopis JJ) then fixed times by which the security was to be provided, and ordered that in default of compliance the appeal be dismissed.  The Full Court considered a notice of appeal (the fifth) which was more focused than its predecessors, and which had been settled by senior counsel.  The appeal was estimated to take five days.  It remained largely fact‑centred.  In part the notice of appeal turned on a case not put to the trial judge and evidence not tendered before the trial judge.  For those reasons, among others, the Full Court declined to vacate French J’s orders to provide security.  Whether the new case will be allowed and the new evidence received has not yet been decided.

The application for special leave to appeal to this Court against these discretionary decisions on matters of practice and procedure does not disclose any error in principle by either French J or the Full Court.  The application stresses the applicant’s impecuniosity and the disastrous financial effects which the trial judge’s costs orders will have if they are not set aside.  It submitted that before security could be ordered, some factor additional to impecuniosity must be present.  There are factors of this kind present in the novel case, based on new evidence, which the applicant wishes to advance.  The application also contends that there is a significant public interest in allowing the appeal to proceed because the appeal will examine the meaningfulness of warnings about the communication of risk; but that is a fact‑specific issue, and a context specific issue.  There are insufficient prospects of success in an appeal against the security orders to justify a grant of special leave.

Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application for special leave.  I publish the disposition signed by Heydon J and myself.

AT 9.24 AM THE MATTER WAS CONCLUDED