McNickle v Huntsman Chemical Company Australia Pty Ltd (Hearing Vacation) [2022] FCA 133

McNickle v Huntsman Chemical Company Australia Pty Ltd (Hearing Vacation) [2022] FCA 133

The unavailability due to ill health of the applicant’s epidemiological expert, Professor Armstrong—a critical area of expertise conflicting evidence and central to the applicant's case—would result in unfairness to proceed. Therefore, notwithstanding earlier skepticism about adjourning the hearing, the interests of justice require the vacation of the trial dates.

Parties
Applicant: Kelvin McNickle; First Respondent: Huntsman Chemical Company Australia Pty Ltd; Second Respondent: Monsanto Australia Pty Ltd (ACN 006 725 560); Third Respondent: Monsanto Company
Jurisdiction
Australia
Judgment Date
11 February 2022
Procedural Posture
Practice and Procedure / Application for Vacation of Hearing Dates—interlocutory Decision
Outcome
Application allowed—the initial trial dates vacated and the hearing adjourned to new dates; directions given for further preparation and case management.
Legal Topics
Vacation of Hearing, Adjournment of Trial, Overarching Purpose Under S 37 M of FCAA, Expert Evidence, Discovery
Practice and Procedure Vacation of Hearing Adjournment of Trial Overarching Purpose Under S 37 M of FCAA Expert Evidence Discovery

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Parties

Kelvin McNickle

Applicant

Huntsman Chemical Company Australia Pty Ltd

First Respondent

Monsanto Australia Pty Ltd (ACN 006 725 560)

Second Respondent

Monsanto Company

Third Respondent

Procedural Posture

Practice and Procedure / Application for Vacation of Hearing Dates—interlocutory Decision

Legal Issues

  1. 1 Whether leave should be granted to vacate the initial trial hearing dates
  2. 2 Whether the grant of an adjournment aligns with the overarching purpose in s 37M of the Federal Court of Australia Act 1976 (Cth)
  3. 3 Whether late discovery and unavailability of expert witnesses justify an adjournment

Ratio Decidendi

The unavailability due to ill health of the applicant’s epidemiological expert, Professor Armstrong—a critical area of expertise conflicting evidence and central to the applicant's case—would result in unfairness to proceed. Therefore, notwithstanding earlier skepticism about adjourning the hearing, the interests of justice require the vacation of the trial dates.

Court Disposition

Application allowed—the initial trial dates vacated and the hearing adjourned to new dates; directions given for further preparation and case management.

Orders

  • The initial trial listed to commence on 2 May 2022 be vacated.
  • The initial trial to commence at 10:15am on 4 September 2023 and continue until 26 October 2023, subject to order.