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

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

The motion was dismissed because s 75AC does not require a claimant to plead or prove a defect by reference to each listed circumstance in s 75AC(2)(a)-(f), and it is legally open to seek to establish defect and causation under s 75AD by inference from evidence that the goods caused injury. The applicant had committed to the particulars provided and was not withholding particulars or taking the respondents by surprise, so there was no basis to dismiss, strike out, or order further particularisation of the s 75AD claim.

Jurisdiction
Australia
Judgment Date
06 March 2003
Procedural Posture
Trade Practices Defective Goods Claim Concerning an Intraocular Lens / First Respondent's Interlocutory Motion to Dismiss or Strike Out the Claim Under S 75 AD of the Trade Practices Act 1974 (cth), or Alternatively for Further Particulars
Outcome
First respondent's motion dismissed with costs payable to the applicant; no order as to costs in respect of the second respondent.
Legal Topics
['defective Goods' 'pleading of Defect' 'particulars' 'inference From Injury' 'intraocular Lens' 'interlocutory Dismissal or Strike Out']
['trade Practices' 'consumer Protection' 'product Liability' 'practice and Procedure'] ['defective Goods' 'pleading of Defect' 'particulars' 'inference From Injury' 'intraocular Lens' 'interlocutory Dismissal or Strike Out']

Case Brief

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Procedural Posture

Trade Practices Defective Goods Claim Concerning an Intraocular Lens / First Respondent's Interlocutory Motion to Dismiss or Strike Out the Claim Under S 75 AD of the Trade Practices Act 1974 (cth), or Alternatively for Further Particulars

Legal Issues

  1. 1 ["Whether the applicant's pleading and particulars of defect under s 75AD of the Trade Practices Act 1974 (Cth) were insufficient because they relied on the fact of injury and an inference that the lens was defective." 'Whether the claim under s 75AD should be dismissed or struck out under O 20 r 2 or O 11 r 16 of the Federal Court Rules.' 'Whether further particulars of the alleged defect should be ordered.' 'Whether costs should be ordered in respect of the interlocutory motion.']

Ratio Decidendi

The motion was dismissed because s 75AC does not require a claimant to plead or prove a defect by reference to each listed circumstance in s 75AC(2)(a)-(f), and it is legally open to seek to establish defect and causation under s 75AD by inference from evidence that the goods caused injury. The applicant had committed to the particulars provided and was not withholding particulars or taking the respondents by surprise, so there was no basis to dismiss, strike out, or order further particularisation of the s 75AD claim.

Court Disposition

First respondent's motion dismissed with costs payable to the applicant; no order as to costs in respect of the second respondent.

Orders

  • ["The first respondent's motion dated 17 December 2002 be dismissed." 'The first respondent pay the costs of the applicant.' 'There be no order as to costs in respect of the second respondent.']