E v Australian Red Cross Society

The applicant, E, sought special leave to appeal to the High Court of Australia against a decision of the Full Federal Court. The dispute concerned claims brought against the Australian Red Cross Society and Central Sydney Area Health (which operated Royal Prince Alfred Hospital) relating to the supply of blood plasma. The applicant's case was based on two grounds: alleged contraventions of section 71(1) of the Trade Practices Act 1974 (Cth) and claims in negligence.

The legal issues before the High Court included whether the Royal Prince Alfred Hospital was a trading corporation, whether the applicant was a consumer, and whether blood plasma constituted "goods" within the meaning of the Trade Practices Act. Crucially, the court was required to determine whether there was a relevant contract for the supply of goods under section 71(1) of the Act, and whether the transaction occurred "in trade or commerce."

The applicant argued that the Federal Court erred in finding no relevant contract for the supply of goods. The court considered the distinction between agreements for the sale of goods and agreements for the performance of services, noting that this distinction can be fine. Reference was made to the traditional test of looking at the substance of the contract and the criticism of this test. The court also considered the New York Court of Appeals decision in *Perlmutter v Beth David Hospital*, which dealt with a similar issue concerning the supply of blood plasma in a hospital context.