Morris v Alcon Laboratories (Australia) Pty Ltd - [2003] FCA 151

FEDERAL COURT OF AUSTRALIA
Morris v Alcon Laboratories (Australia) Pty Ltd [2003] FCA 151
TRADE PRACTICES – defective goods – alleged injury to eye from lens – pleading of defect – particularisation limited to fact of injury – intention to argue case on the basis of inference and expert evidence of injury- whether pleading insufficient or further particulars should be ordered
PRACTICE AND PROCEDURE – claim of liability for defective goods – pleading of defect – particularisation limited to fact of injury – intention to argue case on basis of inference and expert evidence of injury – whether claim should be dismissed, struck out or further particularisation ordered
Trade Practices Act 1974 (Cth) ss 74B, 74D, 75AC, 75AC(1), 75AC(2), 75AC(2)(a)-(f), 75AD
Federal Court Rules O 11 r 16, O 20 r 2, O 62 r 3(3), O 62 r 7(1)(c)
Australian Competition and Consumer Commission v Glendale Chemical Products Pty Ltd (1998) 40 IPR 619 approved
Bright v Femcare Ltd (2000) 175 ALR 50 discussed
The Nominal Defendant v Haslbauer (1967) 117 CLR 448 followed
Vasyli v AOL International Pty Ltd (Lehane J, 19 August 1996, unreported) referred to
Multigroup Distribution Services Pty Ltd v TNT Australia Pty Ltd (1996) ATPR 41-522 referred to
Courtney v Medtel Pty Limited [2003] FCA 36 referred to
Stack v Brisbane City Council (1996) 71 FCR 523 distinguished
MARGARET MORRIS v ALCON LABORATORIES (AUSTRALIA) PTY LTD and STUART LOCKERBIE
W191 of 2002
RD NICHOLSON J
6 MARCH 2003
PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

W191 OF 2002

BETWEEN:

MARGARET MORRIS
APPLICANT

AND:

ALCON LABORATORIES (AUSTRALIA) PTY LTD
ACN 000 740 830
FIRST RESPONDENT

STUART LOCKERBIE
SECOND RESPONDENT

JUDGE:

RD NICHOLSON J

DATE OF ORDER:

6 MARCH 2003

WHERE MADE:

PERTH

THE COURT ORDERS THAT:
1.   The first respondent’s motion dated 17 December 2002 be dismissed.
2.   The first respondent pay the costs of the applicant.
3.   There be no order as to costs in respect of the second respondent.

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

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

W191 OF 2002

BETWEEN:

MARGARET MORRIS
APPLICANT

AND:

ALCON LABORATORIES (AUSTRALIA) PTY LTD
ACN 000 740 830
FIRST RESPONDENT

STUART LOCKERBIE
SECOND RESPONDENT

JUDGE:

RD NICHOLSON J

DATE:

6 MARCH 2003

PLACE:

PERTH

REASONS FOR JUDGMENT

In the applicant’s statement of claim filed on 21 June 2002 it was pleaded as follows:
“28.Further and in the alternative, the applicant’s Acrysof FIO lens had a defect.
Particulars of Defect
The applicant’s Acrysof FIO lens was not as safe as persons generally are and were entitled to expect given that it has caused the symptoms set out in paragraph 25 herein.
In relation to the expectation of safety that persons were entitled to have concerning the lens, despite the second respondent providing literature to the applicant, prior to her undergoing the surgical implantation of the lens, such literature contained no reference to any…

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: [2003] FCA 151
Decision Date: 6 MARCH 2003

CaseChat Overview and Summary

In the Federal Court of Australia, Morris brought a case against Alcon Laboratories (Australia) Pty Ltd, contesting an interlocutory motion filed by the first respondent. The matter raised questions about the appropriateness and timing of interlocutory motions in the context of ongoing litigation, with an emphasis on cost implications and the potential for restraining unnecessary litigation. The primary legal issue was whether the motion brought by the first respondent should be discouraged due to its timing and nature, and if so, whether costs should be awarded under the relevant provisions of the Federal Court Rules. The court had to assess if the motion was appropriately raised at that stage of the litigation and if it warranted any sanctions under the rules.

The court examined the motion in light of the principles established in Stack v Brisbane City Council, where it was held that certain provisions in the Federal Court Rules were intended to allow for interlocutory motions that could only properly be raised at specific stages of litigation, while still acting as a check against excessive interlocutory litigation. The court concluded that the motion in question was not of the kind that required restraint, as it raised an issue that could only be properly addressed at that juncture in the proceedings. Consequently, the court found no grounds to impose any costs orders against the first respondent for the interlocutory motion.

Following its analysis, the court ruled that the motion should be dismissed without any costs being awarded against the applicant. It further directed that the first respondent pay the costs of the applicant, while making no order as to costs in respect of the second respondent. The court’s decision emphasized the importance of balancing the need to manage litigation costs with the necessity of allowing appropriate interlocutory motions in the course of litigation.

Orders

Orders of the court

1. The first respondent’s motion dated 17 December 2002 be dismissed.

2. The first respondent pay the costs of the applicant.

3. There be no order as to costs in respect of the second respondent.

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

For the applicant it is submitted that the first respondent should be discouraged from bringing interlocutory motions so that costs in any event should be awarded. In Stack v Brisbane City Council (1996) 71 FCR 523 at 534 Drummond J recognised that the provisions in O 62 r 7(1)(c) relaxed the general rule in O 62 r 3(3) but acted as a brake upon unrestrained interlocutory litigation. I do not regard the present motion as having been brought inappropriately; that is, it has raised an issue which could only properly be raised at this stage of the litigation. It is not in the character of interlocutory litigation requiring restraint. There is no reason to make any order pursuant to O 62 r 3(3).Conclusion For the above reasons the motion brought by the first respondent should be dismissed with costs.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W191 OF 2002

BETWEEN:	MARGARET MORRIS APPLICANT
AND:	ALCON LABORATORIES (AUSTRALIA) PTY LTD ACN 000 740 830 FIRST RESPONDENT STUART LOCKERBIE SECOND RESPONDENT
JUDGE:	RD NICHOLSON J
DATE OF ORDER:	6 MARCH 2003
WHERE MADE:	PERTH

JUDGE:	RD NICHOLSON J
DATE:	6 MARCH 2003
PLACE:	PERTH