Wright v TNT Management Pty Ltd

New South Wales Court of Appeal Mahoney, McHugh and Clarke JJA Wright v TNT Management Pty Ltd

ORDER (By majority) Appeal dismissed Proceedings remitted to Common Law Division to be dealt with.

Cur adv vult

13 February 1989 MAHONEY JA.

On 26 August 1987, the plaintiff was employed by the defendant to do labouring work. He was directed to help in the unloading of a semi-trailer. In the course of doing so, he was injured.

The plaintiff apparently considered that he could not or should not sue the defendant for damages under the common law: this, it has been suggested, was because of the Workers Compensation Act 1987, s 149. Instead, he brought proceedings against the defendant for a breach of the Trade Practices Act 1974 (Cth), ss 52, 53B and 55A and claimed damages for those breaches under s 82.

Rogers J ordered that, pursuant to the Supreme Court Rules 1970, Pt 31, r 2, a question in the proceeding be decided separately from any other question, that question being: Whether the facts as pleaded and particularised give rise to a cause of action pursuant to the Trade Practices Act.

On 20 April 1988, Lee J answered the question in the negative and ordered that the proceeding be dismissed with costs: Pt 31, r 6: see Wright v TNT Australia Pty Ltd (1988) 15 NSWLR 679The plaintiff has appealed to this Court against his Honour's judgment.

When the appeal came on for hearing, the Court had the benefit of submissions made by the Solicitor-General for New South Wales, Mr Mason QC, appearing for the Attorney-General for New South Wales. The Solicitor-General submitted that he was entitled to appear as of right or that, alternatively, his submissions could and should be received as of an amicus curiae. The Court has considered the Solicitor-General's submissions. It is not necessary to consider whether, in the circumstances, the Attorney- General has the right to intervene and whether the Court can and should give him leave so to do.