Various Applicants v Australian Red Cross Society

[1992] FCA 352

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352 j92

JUDGMENT No. .... l.ll..l.l..l. .l.ll.l.l.l. L .

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IN THE FEDERAL COURT OF AUSTRALIA ) NOS-NG 748 of 1989

NEW SOUTH WALES DISTRICT REGISTRY ) NG 749 of 1989

GENERAL DIVISION 1 NG 750 of 1989 NG 751 of 1989

BETWEEN:  VARIOUS APPLICANTS
Applicants

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AND :	AUSTRALIAN	RED	CROSS	C '
:

SOCIETY and ORS	I .
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Respondents	I_.

the cross-vesting legislation, to the Supreme Court of New I..

C O W :	WILCOX J
PLACE :	SYDNEY
DATE :	14 MAY 1992

EXTEMPORE REASONS FOR JUDGMENT

1

WILCOX J:	In matters 751 and 753, in each case of 1989, an	1 .
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application is made to transfer the proceeding, pursuant to

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South Wales in order that the applicant may have trial by jury. In at least one of these cases, a similar application was made last year and refused. The only circumstance that has changed, so far as I can see, is that, whereas at that time there seemed to be a live move to terminate the possibility of jury trial in negligence actions in the Supreme Court, that is no longer the case. However, I do not think that this much affects the overall situation.

In case 751 there is an action pending in the Supreme Court against two doctors who were involved in the subject blood transfusion. That action was commenced after the current proceeding. If the Supreme Court action had been commenced at an earlier date, I might have taken a different view. But it seems to me that, if there is to be an aggregation of the proceedings, prima facie it ought to be in the direction of the earlier action remaining in the court where it was commenced and the later action being transferred. If the applicant wishes to maintain the separate action in the Supreme Court, and not apply for transfer. then that is her

Supreme Court action later commenced should be a reason for	entitlement, but I do not think the fact that there is a
transferring the matter from this Court.
In the other case, number 753, there is no Supreme Court action pending. The sole ground for the application is the desire of the applicant to have a jury trial. I do not think that I ought to put any weight upon the desire for a jury trial. If there was no problem of transfer, and if the action had been commenced in the Supreme Court, no doubt the plaintiff would be entitled to request a jury and, subject to any relevant rules or exercises of discretion, a jury would be provided. But the fact is that each application has been filed in this Court. I think that I should only transfer the matter if satisfied that this is in the interests of justice and, on balance, fair to all the parties.
I have a problem in identifying a viable ground of negligence against the respondents. I am not saying that there is no ground but I have invited some particularisation of these grounds, not inconsistent with the decision in E v Australian Red Cross; but without response. It may be possible for these applicants to argue a different case to those of "g", or to adduce further evidence to obtain different factual conclusions. I emphasise that these options are available to them. But they are available in this Court as much as in the Supreme Court of New South Wales.
It seems to me that it is important to minimise the time necessary to deal with these cases and that I ought to them would have the advantage of the decision in "g". It would still be open to the applicants to adduce further material, even on the issues raised in "g"; and, if that further material was persuasive, a different result would ensue. Similarly, if other heads of negligence are relied upon, they will be dealt with, in an open-minded way; whether by me or any other Judge. It may well be that the result will be different. But I think that the hearing would be a lot shorter if that course was taken, rather than by sending the matters off to the Supreme Court to be supposedly conducted, in effect, as if there had been no previous hearing. Consequently, I refuse each of the applications.
take a course which is efficient, rather than the opposite.
I certify that this and the preceding three (3) pages are a true copy of the Reasons for Judgment of the Honourable Justice Wilcox.
Associate:
Dated:  14 May i 9 9 2