McKinnon v Commonwealth of Australia

BRANSON J: 1 Mr McKinnon's substantive case against each of the respondents is based upon an allegation that he is suffering from acute mercury toxicity as a result of amalgam fillings used in dental treatment from 1980 onwards. The pre-trial management of the case has occasioned difficulties, a number of such difficulties being the result of Mr McKinnon's unwillingness to attend medical examinations arranged for him by the respondents in Sydney. Mr McKinnon, today, seeks leave to appeal from certain interlocutory judgments or alleged interlocutory judgments made by the docket judge, Hill J. 2 Section 24(1)A of the Federal Court of Australia Act 1974 (Cth) prohibits appeals from interlocutory judgments of the Court except with leave. The sub-section reflects the well established policy of restraint recognised by all Australian courts with respect to appellate interference with the preparation of a case for trial. This restraint is even more pronounced in the case of interlocutory decisions on points of practice. In such cases, leave is ordinarily to be refused unless it can be shown not only that the decision is attended by sufficient doubt to warrant its being reconsidered by the Full Court in the sense that its correctness is open to genuine dispute but also that the interlocutory decision, if wrong, would cause significant injustice to the applicant for leave (Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397). 3 I turn now to consider the orders of Hill J concerning which leave to appeal is sought. I go first to his Honour's orders of 19 November 1998. The orders made by his Honour on this day are plainly orders concerning matters of practice. Indeed, it is not clear that these orders amount to the type of operative judicial acts from which an appeal lies. In any event, of themselves, these orders have no ongoing significance. They merely provided the basis for later applications made to Hill J for the proceeding to be stayed. Leave to appeal from the orders of 19 November 1998 should, in my view, be refused. 4 On 20 November 1998, Hill J gave consideration to a purported notice of motion of 17 June 1998. It was a document plainly drawn by a person with little understanding of the procedures of this Court. His Honour sought to explain to Mr McKinnon on 20 November 1998 the reasons why he could not make a number of the orders sought on this notice of motion. So far as his Honour declined to make orders on the notice of motion, I am of the view that his Honour was right to do so. So far as his Honour did make orders, there is, in my view, no reason to doubt the correctness of the orders his Honour made. Leave to appeal against the orders made by Hill J on that day should, in my view, be refused. 5 On 20 April 1999, Hill J ordered that Mr McKinnon's application against each of the respondents be stayed on the basis that he had not participated in medical examinations for which the first and the fourth respondents had made arrangements. However, Hill J made it plain that the stays need not be permanent. He indicated that it was open to Mr McKinnon to make arrangements with the medical practitioners nominated by the respondents for examination to be held at his and their convenience. If Mr McKinnon made such arrangements and attended examinations, his Honour said that he would consider lifting the stay. 6 Mr McKinnon has indeed made arrangements to be medically examined, as suggested by his Honour, and attended a number of medical examinations. In my view, there is no reason to doubt the appropriateness in the circumstances of the order made by Hill J staying Mr McKinnon's proceeding. Mr McKinnon contends that the requirement for him to attend medical examinations, as reasonably required by the respondents for the purpose of allowing them to defend the proceeding, is an infringement of his substantive right to civil liberty and an infringement of the constitutional prohibition against civil conscription. This contention is, in my view, entirely without merit. I would refuse leave to appeal the orders made by Hill J on 20 April 1999. 7 Also, on 20 April 1999, Hill J considered certain motions brought by Mr McKinnon on the basis of notices of motion dated 25 January 1999 and 6 April 1999 respectively. As his Honour had dealt with the stay application first, at the request of Mr McKinnon's then legal representative, the better view was probably, as his Honour noted, that the motions were themselves stayed. However, his Honour stood over the motion of 25 January so far as it concerned matters of discovery. No legitimate complaint can, in the circumstances, be made of this order by his Honour. 8 His Honour dismissed the remainder of the motions. He was, in my view, plainly right to do so. The orders sought were either inappropriate orders to be sought from Hill J, or in some cases at all, and in other cases such as an application for the first respondent to be declared vexatious, the application was simply misconceived. No proper basis is shown, in my view, for the application made by Mr McKinnon for an order staying or suspending the stay order made by Hill J until after consideration and determination of Mr McKinnon's interlocutory appeals to this Court or to the High Court. I would also refuse leave to appeal against these additional orders made by Hill J on 20 April 1999. FINN J: 9 I agree.