Cook v Pasminco Ltd

[2000] FCA 677

FEDERAL COURT OF AUSTRALIA

Cook v Pasminco Ltd [2000] FCA 677

PRACTICE AND PROCEDURE – Jurisdiction of Federal Court – claims of negligence and nuisance arising out of emission of allegedly noxious fumes which allegedly injured health of applicants – accrued jurisdiction – claims under Trade Practices Act 1974 (Cth) ss 75AD and 75AG that the emissions were “goods” “manufactured” by respondents and “supplied” by them “in trade or commerce” and that had a “defect”.

WORDS AND PHRASES – “goods” – “manufactured” – “in trade or commerce” – “supply” – “defect”.

Trade Practices Act 1974 (Cth) ss 75 AC, 75AD, 75AG

ReWakim; ex parte McNally (1999) 163 ALR 270, cited
Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457, applied
Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation (1987) 18 FCR 212, applied
Fitzroy Motors Pty Ltd v Hyundai Automotive Distributors Australia Pty Ltd (1995) 133 ALR 445, followed
WG & B Manufacturing Pty Ltd v Tesla Farad Pty Ltd [1999] FCA 1776, followed
Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594, applied

ROSLYN GAY COOK & ORS v PASMINCO LIMITED & ORS

N 132 OF 2000

LINDGREN J
12 MAY 2000
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 132 OF 2000

BETWEEN:

ROSLYN GAY COOK
First Applicant

SAMANTHA JOY COOK (by her next friend ROSLYN GAY COOK)
Second Applicant

VICKI LEAH BLAD
Third Applicant

ASHLEIGH AGARS (by his next friend VICKI LEAH BLAD)
Fourth Applicant

AND:

PASMINCO LIMITED
First Respondent

PASMINCO COCKLE CREEK SMELTER PTY LIMITED
Second Respondent

PASMINCO PORT PIRIE SMELTER PTY LIMITED
Third Respondent

JUDGE:

LINDGREN J

DATE OF ORDER:

12 MAY 2000

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.        The application be dismissed as incompetent.

2.The proceeding be stood over to a date to be fixed for the hearing of submissions on costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 132 OF 2000

BETWEEN:

ROSLYN GAY COOK
First Applicant

SAMANTHA JOY COOK (by her next friend ROSLYN GAY COOK)
Second Applicant

VICKI LEAH BLAD
Third Applicant

ASHLEIGH AGARS (by his next friend VICKI LEAH BLAD)
Fourth Applicant

AND:

PASMINCO LIMITED
First Respondent

PASMINCO COCKLE CREEK SMELTER PTY LIMITED
Second Respondent

PASMINCO PORT PIRIE SMELTER PTY LIMITED
Third Respondent

JUDGE:	LINDGREN J
DATE:	12 MAY 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(ex tempore)

1. The applicants sue the respondents arising out of alleged noxious emissions from their plants at Cockle Creek, near Newcastle, New South Wales, and Port Pirie in South Australia.  All four applicants allege injury to their health.  There is also a case made based on noise and vibrations but this is not of immediate concern. 

2. The first applicant and her daughter, the second applicant, who is seven years old, live at Cockle Creek.  The first applicant bought a house…