McMullin v ICI Australia Operations Pty Ltd - [1999] FCA 1814

FEDERAL COURT OF AUSTRALIA
McMullin v ICI Australia Operations Pty Ltd [1999] FCA 1814
PRACTICE AND PROCEDURE – Application to reopen previous determination of categories of persons to whom respondent owed a duty not to cause pure economic loss – Judgment not yet entered – Circumstances under which the Court should allow reopening of such an issue - Whether the decision in Perre vApand Pty Ltd establishes that previous determination was erroneous – Application refused.
Perre v Apand Pty Ltd [1999] HCA 36, 164 ALR 606 considered
BRIAN McMULLIN and LEONE MARGARET McMULLIN v ICI AUSTRALIA OPERATIONS PTY LTD, ICI AUSTRALIA LIMITED and CROP CARE AUSTRALIA PTY LIMITED
NG305 of 1995
WILCOX J
23 DECEMBER 1999
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NG305 of 1995

BETWEEN:

BRIAN MCMULLIN and LEONE MARGARET MCMULLIN
Applicants

AND:

ICI AUSTRALIA OPERATIONS PTY LTD
First Respondent

ICI AUSTRALIA LIMITED
Second Respondent

CROP CARE AUSTRALIA PTY LIMITED
Third Respondent

JUDGE:

WILCOX J

DATE:

23 DECEMBER 1999

PLACE:

SYDNEY

THE COURT ORDERS THAT:
1.The application of the applicants to reopen the issue of the categories of persons to whom the respondents owed a common law duty of care be refused.
2.The applicants pay the costs of the respondents in relation to that application, including the costs connected with the provision of written submissions, but limited to one-half of the costs associated with the hearing on 9 December 1999.

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

NG305 of 1995

BETWEEN:

BRIAN MCMULLIN and LEONE MARGARET MCMULLIN
Applicants

AND:

ICI AUSTRALIA OPERATIONS PTY LTD
First Respondent

ICI AUSTRALIA LIMITED
Second Respondent

CROP CARE AUSTRALIA PTY LIMITED
Third Respondent

JUDGE:

WILCOX J

DATE:

23 DECEMBER 1999

PLACE:

SYDNEY

REASONS FOR JUDGMENT (No.7)

WILCOX J: These reasons relate to an application to reconsider some views expressed by me in my decision on liability.
The decision on liability
On 24 June 1997 I handed down my Reasons for Judgment on issues of liability as between the applicants (and group members) and the five then remaining respondents, ICI Australia Operations Pty Ltd, ICI Australia Limited, Crop Care Australasia Pty Ltd, the State of New South Wales and the State of Queensland. Those reasons are reported: see 72 FCR 1.
For the reasons expressed that day, I dismissed the proceeding insofar as it related to the claims against the State of New South Wales and the State of Queensland. I did not dismiss the proceeding insofar as it related to the three ICI companies (collectively “ICI”); but I did limit the reach of the negligence claim, as against those three respondents. I did so because I was of the opinion that ICI lacked a duty of care towards some categories of claimants. In order to explain this, it is necessary to refer to my earlier reasons for judgment. I do so by reference to…

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.

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Details

Case: [1999] FCA 1814
Decision Date: 23 DECEMBER 1999

CaseChat Overview and Summary

The case of McMullin v ICI Australia Operations Pty Ltd dealt with an application to reopen the determination of categories of persons to whom ICI Australia owed a duty not to cause pure economic loss. The matter was before the court as part of a larger dispute concerning negligence claims and was subject to a High Court decision in Perre v Apand Pty Ltd, which was referred to in the original judgment. The applicants sought to amend the categories of claimants entitled to recover damages in negligence in light of the High Court’s decision in Perre, which they believed indicated that the original determination was unduly narrow.

The legal issues the court was required to decide included whether the High Court decision in Perre v Apand Pty Ltd established that the previous determination of the categories of claimants was erroneous, and if so, whether the court should reopen the issue of proximity. The court also had to consider the appropriate circumstances under which it should allow the reopening of such an issue, particularly in light of the fact that most of the cross claims had already settled, and the High Court's decision was not directly related to the specifics of this case.

In ruling on the application, the court found that the High Court decision in Perre did not demonstrate that the previous conclusion regarding the categories of claimants was incorrect. The court concluded that it was inappropriate to resolve the issue of reopening the categories at a directions hearing, and that the matter had already been adequately addressed in the original judgment. The court therefore refused the application to reopen the issue of the categories of persons to whom the respondents owed a common law duty of care. The applicants were ordered to pay the respondents' costs in relation to the application, with certain limitations.

Orders

Orders of the court

1. The application of the applicants to reopen the issue of the categories of persons to whom the respondents owed a common law duty of care be refused.

2. The applicants pay the costs of the respondents in relation to that application, including the costs connected with the provision of written submissions, but limited to one-half of the costs associated with the hearing on 9 December 1999.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

WILCOX J (dissent)

In the final paragraph of my reasons of 24 June 1997, I confirmed my intention of commencing the hearing of the cross claims on 4 August 1997. However, most of the cross claims settled before that date; one was still outstanding on 4 August but it, too, settled after a couple of days hearing. The settlements were all on the basis that the cross claims were to be dismissed. No application was made for leave to appeal against any aspect of my 24 June judgment. This resulted in a situation where, so far as the negligence claim (as distinct from the s52 claim) was concerned, ICI was liable to claimants in the first four categories, and only claimants in those categories. However, there were some hundreds of claimants in those categories, so the assessment of damages was a major task. It has occupied the period since August 1997. I am informed by counsel for ICI that 11 claims were resolved by judgment (either by myself or Judicial Registrar Walker) and 472 claims have been settled, mostly through a mediation process. I understand only 12 negligence claims falling within the categories specified on 24 June 1997 remain unresolved. I am uncertain what the position may be in respect of claims based on s52 of the Trade Practices Act 1974.The High Court decision in Perre On 12 August 1999, the High Court of Australia gave judgment on Perre v Apand Pty Ltd [1999] HCA 36; 164 ALR 606. This was a case to which I had made a passing reference in my judgment on liability. At first instance, before von Doussa J, it was called Sparnon v Apand Pty Ltd (unreported). At 79 I noted that, in Sparnon, von Doussa J followed a decision of the Full Court of South Australia, Seas Sapfor Forests Pty Ltd v Electricity Trust of South Australia (1996) 187 LSJS 369, on which I placed some reliance. The view taken in Sparnon by von Doussa J was upheld by a Full Court of this Court: see Perre v Apand Pty Ltd (1997) 80 FCR 19. However, the High Court disagreed with it. All members of the High Court held the appeal should be allowed, although there was disagreement between them as to which appellants’ claims ought to proceed to assessment of damages.The application to re-open the categories At a directions hearing on 19 October 1999, counsel for the applicants, Mr J Rowe, asked me to reconsider the categories of claimants entitled in this case to recover damages in negligence. He stated that his application stemmed from the High Court decision in Perre and reflected a view that this decision established I had determined the issue of proximity unduly narrowly. Mr D J Habersberger QC, who appeared with Mr G G McArthur for ICI, opposed any re-opening of the issue of proximity and submitted that Perre did not, in any event, demonstrate my previous conclusion was incorrect. It was inappropriate to resolve this issue at a directions hearing. I directed the lodgement of written submissions by each side, addressed both to the matter of reopening the issue and the effect of Perre. I fixed the afternoon of 9 December 1999 for oral elaboration of the written submissions.

Ratio Decidendi

Legal Principle Established

Established by:

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG305 of 1995

JUDGE:	WILCOX J
DATE:	23 DECEMBER 1999
PLACE:	SYDNEY