Merrick, A.V. v Australian Red Cross Society and Ors Johnson, H.E v Australian Red Cross Society and Ors

[1990] FCA 156

I-% 90 -

JUDGMENT NO ........ . . . ........ ..... -...

IN THE FEDERAL COURT OF AUSTRALIA )

)

NEW SOUTH WALES DISTRICT REGISTRY )

1

GENERAL DIVISION 1

No. G749 of 1989

BETWEEN:	ALLEN VINCENT MERRICK Applicant
AND :	AUSTRALIAN RED CROSS SOCIETY
First respondent
AUSTRALIAN RED CROSS SOCIETY NEW SOUTH WALES DIVISION
Second respondent
COMMONWEALTH SERUM LABORATORIES COMMISSION
Third respondent CENTRAL SYDNEY AREA HEALTH SERVICE Fourth respondent

No. G755 of 1989

BETWEEN:	HOLLY EMMA JOHNSON by her next friend DOUGLAS PATRICK JOHNSON
Applicant

AND:	AUSTRALIAN RED CROSS SOCIETY
First respondent
AUSTRALIAN RED CROSS SOCIETY NEW SOUTH WALES DIVISION
Second respondent WESTERN SYDNEY AREA HEALTH SERVICE Third respondent

PRIPI~-IF'AL

MINUTES OF ORDER

7- ,- - -

2  -MAY 1990

FEDERAL rOURT OF
AUSTRALIA

Judges making order: Beaumont, Burchett and Gummow JJ.

Date order made:	1 May 1990
Where made:	Sydney
THE COURT ORDERS:

That the applications for leave to appeal are

refused with costs.

Note: Settlement and entry of orders is dealt with in

Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA )

1

NEW SOUTH WALES DISTRICT REGISTRY )

1

GENERAL DIVISION )

No. G749 of 1989

BETWEEN:  ALLEN VINCENT MERRICK
Applicant

AND :	AUSTRALIAN RED CROSS SOCIETY
First respondent
AUSTRALIAN RED CROSS SOCIETY NEW SOUTH WALES DIVISION
Second respondent
COMMONWEALTH SERUM LABORATORIES COMMISSION
Third respondent CENTRAL SYDNEY AREA HEALTH SERVICE Fourth respondent

No. G755 of 1989

BETWEEN:	HOLLY EMNA JOHNSON by her next friend DOUGLAS PATRICK JOHNSON
Applicant

AND:  AUSTRALIAN RED CROSS SOCIETY

First respondent

AUSTRALIAN RED CROSS SOCIETY NEW
SOUTH WALES DIVISION

Second respondent
WESTERN SYDNEY AREA HEALTH SERVICE
Third respondent

CORM: Beaumont, Burchett and Gummow JJ.

DATED: 1 May 1990

REASONS FOR JUDGMENT
(On applications for leave to appeal)

THE COURT: Before the Full Court are several applications, which, by consent, were heard together. The applications are for leave to appeal and are made in the following circumstances.

In the first matter (No. G749 of 1989), in November 1989 proceedings were commenced in the Court by Allen Vincent Merrick, as applicant, against the Australian Red Cross Society, as first respondent, the Australian Red Cross Society New South Wales Division, as second respondent, the Commonwealth Serum Laboratories Commission, as third respondent, and the Central Sydney Area Health Services, as fourth respondent. In the proceedings, Mr. Merrick claims damages from the respondents arising out of several alleged causes of action specified in his application as follows:

"(a) negligence;

(b) negligent failure to screen donors of blood

products or blood donated;

(C) negligent misrepresentation;

(d)	negligent failure to warn the Applicant, the public and the medical profession of the risks involved in the use of the clotting agent or blood product administered to the Applicant and/or the transfusion of blood or blood products and the availability of alternative treatments;
(e)	breach of contract (including breach of the provisions of Division 2 of Part V of the Trade Practices Act);
(f)	breach of the provisions of Division 2A of Part V of the Trade Practices Act; and
(g)	misleading and deceptive conduct within the meaning of the Trade Practices Act:"

~y his statement of claim filed on 21 March 1990, Mr. Merrick alleges that the respondents were both negligent under the general law and liable under ss.52, 748 and 74D of the Trade Practices Act 1974. Particulars of the negligence alleged are set out in para.20 of the statement of claim. The claims made under the Trade Practices Act are contained in paras. 21 to 30 of the statement of claim.

On 27 March 1990, the matter came before Wilcox J. for directions. At the directions hearing, applications to strike out parts of the statement of claim and certain other interlocutory applications were foreshadowed. Wilcox J. then directed that all such applications be dealt with by notice of motion returnable on 5 April 1990.

By its notice filed on 2 April 1990, the Australian Red Cross Society sought, inter alia, the following orders:

"1.

That paragraphs 21, 22, 23, 25, 26, 27, 28, 29

pursuant to Order 11 Rule 16(a) or alternatively and 30 of the Statement of Claim be struck out

that the claim for relief sought by the Applicant therein be stayed or dismissed pursuant to Order 20 Rule 2(l)(a) on the grounds that at all material times the First Respondent -

(a)	was not a trading corporation within the meaning of the Trade Practices Act;
(b)	was not engaged in trade or commerce within the meaning of the Trade Practices Act;

(C) was not engaged in the supply of goods or services to a consumer in the course of a business within the meaning of the Trade Practices Act.

2.     Alternatively that the questions of fact and law raised by paragraphs 21, 22, 23, 25, 26, 27, 28,

29 and 30 of the Statement of Claim be decided

separately from any other question before the trial of the proceeding pursuant to Order 29 Rule 2(a) of the Federal Court Rules."

The Australian Red Cross Society New South Wales Division, the Commonwealth Serum Laboratories Commission and the Central Sydney Area Health Service also filed notices of motion seeking similar interlocutory relief in respect of the claims made under the Trade Practices Act.

The notices of motion were before Wilcox J. on 5 April

1990. His Honour then also had before him similar notices of

motion filed in proceedings G.755 brought by Holly Emma Johnson, by her next friend, against the Australian Red Cross Society, as first respondent, and the Australian Red Cross Society New South Wales Division, as second respondent, and the Western Sydney Area Health Service, as third respondent.

Matters G.749 and G755 raise like, although not

identical, issues. In matter No. G755, the statement of claim

also seeks damages in respect of several causes of action. The	statement of claim in this matter is in similar form in many
respects to the statement of claim in G.749. For immediate purposes, it will suffice to note that in matter G.755 claims are made in the statement of claim both under the general law (paras.
8 to 15) and under the Trade Practices Act (paras. 16 to 33).
In an ex tempore judgment given on 5 April 1990, Wilcox J. dismissed the motions before him so far as they sought to strike out the indicated paragraphs of the statements of claim, and sought a stay of proceedings, and a determination of the preliminary questions indicated. The effect of his Honour's decision was that the points that the respondents to the proceedings wished to raise should await determination at the trial. Applications are now made for leave to appeal from the interlocutory decision of Wilcox J.
In considering the present applications, the well-known statement of principle made by Jordan C.J. in In re the Will of F.B.Gilbert (Dec.) (1946) 46 S.R. (N.S.W.) 318 at p.323, should be borne in mind. That statement, which was approved by the High Court in Adam P. Brown Male Fashions Pty. Ltd. v. Phillip Morris Incorporated (1981) 148 C.L.R. 170 at p.177, is as follows:

"...I am of opinion that,. ..there is a material difference between an exercise of discretion on a point of practice or procedure and an exercise of discretion which determines substantive rights. In the former class of case, if a tight rein were not kept upon interference with the orders of Judges of first instance, the result would be disastrous to the proper administration of justice. The disposal of cases could	be delayed interminably, and costs heaped up	indefinitely, if a litigant with a long purse or a
litigious disposition could, at will, in effect transfer all exercises of discretion in interlocutory applications from a Judge in Chambers to a Court of Appeal. "

The discretion which Wilcox J. was asked to exercise in the present case was on a point of practice or procedure. It was not the exercise of a discretion which determined substantive rights. In essence, his Honour was asked to direct that certain matters be set apart and determined as preliminary questions before the trial. It appeared that these were questions of mixed fact and law. Wilcox J. clearly had the power, in an appropriate case, to direct a departure from the usual procedure by ordering a separate determination of certain issues, notwithstanding that it is sometimes found that this is an inappropriate course which can delay a trial and increase costs.

There is no fixed rule in this area. It is always a

matter for the judge who is conducting the pre-trial procedures in the case to form a judgment whether, in the particular circumstances of that case, it is in the interests of justice that a question be determined before the trial rather than at the trial itself.

In the present case, Wilcox J. addressed the question as to when the points sought to be raised by the respondents to the proceedings should be determined. He concluded that the respondents had not demonstrated to his satisfaction any sufficient reason why these points should not be dealt with at the trial. It was clearly open to his Honour to form that view

and we are not persuaded that the judge fell into any error of	principle in arriving at his conclusion. His Honour was not, of
course, deciding whether the points sought to be raised as preliminary questions were correct or even arguable. He was merely determining when the points should be argued. 1n so deciding, his Honour had a broad discretion. Having had the benefit of a full outline of the arguments which would have been advanced in support of an appeal if leave to appeal were granted,
we are not persuaded that there is any ground for interfering with that discretion.

The applications for leave to appeal are refused, with

costs.

I certify that this and the

preceding 5;Y ( 6) pages are	a true copy of the reasons for
judgment herein of the Court.
Associate h?d S*,%.
Dated: 1 May 1990

Counsel and solicitors Mr. J.L. Sher Q.C. and

for the Australian Red Cross Mr. T. Wodak instructed by

Society	Messrs Arthur Robinson and Hedderwicks
Counsel and solicitors	Mr. P.E. King instructed by

for the Australian Red Cross Messrs Tress Cocks and Maddox
Society New South Wales

Division

Counsel and solicitors	Mr. P.R. Garling instructed
for Central and Western	G.I.O. of N.S.W. General
Sydney Area Health Service	Insurance Law Department
Counsel and solicitors for	Mr. M.J. Joseph instructed by
Allen Vincent Merrick	Messrs Turner Freeman

Counsel and solicitors for	Mr. M. Cashion instructed by
Holly Emma Johnson	Messrs J.M. Caruana Kay and Barry
Date of hearing:	27 April 1990
Date judgment delivered:	1 May 1990