Femcare Limited v Bright &Anor S110/2000 [2001] HCATrans 564 (30 October 2001)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S110 of 2000

B e t w e e n -

FEMCARE LIMITED

Applicant

and

KERRIE BRIGHT

First Respondent

ENDOVASIVE PTY LIMITED

Second Respondent

Directions hearing

GUMMOW J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 30 OCTOBER 2001, AT 9.33 AM

Copyright in the High Court of Australia

MR B.W. WALKER, SC: If it please your Honour, I appear for the applicant. (instructed by Freehills)

MR A.J.L. BANNON, SC: I appear for the respondent with my learned friends, MR J.R. CLARKE and MR P.K. CASHMAN. (instructed by Maurice Blackburn Cashman)

MR D.M.J. BENNETT, QC, Solicitor-General of the Commonwealth: May it please the Court, I appear for the Attorney-General of the Commonwealth intervening. (instructed by the Australian Government Solicitor)

MR P.J. DEAKIN, QC: If your Honour please, I appear for the second respondent. (instructed by Sparke Helmore)

HIS HONOUR: Now, whose application is it this morning?

MR WALKER: Your Honour, if it is any application, it is mine and it this, that the application for special leave to appeal which has been fixed for 21 and 22 November to be heard, at least initially, as on an appeal, that that hearing date be vacated but that the application for special leave to appeal be stood over on the following basis. On 19 October this year Justice Stone delivered judgment - - -

HIS HONOUR: Yes, I have read that judgment.

MR WALKER: - - - in an application which, as your Honour knows, was originally listed before, heard by and reserved on by Justice Lehane. That was an application under section 33N. We were successful, which has the effect that the proceedings no longer continue under Part IVA of the Federal Court Act. On our understanding of the issues as they are presented by our would-be appeal in the High Court, that makes the whole thing moot, because that which we attack in the High Court is the application to us of Part IVA of the Federal Court Act. Her Honour has, albeit within the terms of those provisions, now said that those provisions will not govern - - -

HIS HONOUR: Yes. Is there any application for leave yet against that late decision?

MR WALKER: There is. My learned friend, Mr Bannon, tells me that has been filed. We will do everything within our power to co-operate with expedition and efficient hearing of that.

HIS HONOUR: So is Mr Bannon the only moving party?

MR WALKER: Yes.

HIS HONOUR: What about Mr Deakin?

MR WALKER: Yes, Mr Deakin is an enthusiastic supporter of mine.

HIS HONOUR: Does he have a separate application?

MR WALKER: There were two 33N applications. Both succeeded.

HIS HONOUR: Yes, I see. And each will provoke a leave application in the Full Court?

MR WALKER: Each has provoked a leave application. This is a case, therefore, that has become moot but may become real again. That is why my application is the curious one to adjourn the special leave application to see whether that ever happens. If it does not happen, what should happen is that the special leave application be dismissed. If it does happen, then we would be seeking to have it relisted again on the same basis as it is presently listed for 21 and 22 November.

HIS HONOUR: Yes, thank you. While you are here, Mr Walker, there is a new section 78B notice.

MR WALKER: Yes, that arose because of further thought concerning the effect of some of our arguments with respect to the suspension of limitation periods under State law.

HIS HONOUR: Yes. I have a document headed "FURTHER AMENDED APPLICATION FOR SPECIAL LEAVE TO APPEAL". Paragraph 4A says:

The Full Court erred in failing to hold that Part IVA of the Act is invalid on the basis that the purported suspension of the running of any limitation period . . . is beyond the legislative power conferred on the Commonwealth by the Constitution.

MR WALKER: Yes.

HIS HONOUR: Why? Why is it said to be relevant, Mr Walker?

MR WALKER: I do not think I can answer that at first, your Honour.

HIS HONOUR: Well, it may be a subject of particular interest to the Solicitor-General, I think.

MR WALKER: Yes. Your Honour, that is something I can take up and then talk about with my learned friend, the Solicitor.

HIS HONOUR: Yes. At the moment I think 4A is defective unless it is expanded because it does not convey any specific content.

MR WALKER: May it please your Honour.

HIS HONOUR: All right. Is there any opposition to this course?

MR BANNON: Yes, your Honour. There are a few brief things we wish to say. At the time when the application for special leave came before the Court the 33N application had been heard and - was awaiting to be heard and there was always the potential for it to be decided adversely to us. This Court nevertheless chose to list the special leave application as an appeal. That position has altered but, by the same token, we have lodged the application for leave to appeal from that decision.

We also propose to seek a stay of Justice Stone's order. That was not sought at the time judgment was handed down. It was not understood by the person taking judgment that the order was being made at that time because her Honour did not pronounce it, although it appears in writing. There was some confusion in relation to that. Be that as it may, a stay will be sought of that order.

One of the matters raised by the members of this Court on the special leave application in response to our suggestion that the special leave application be dismissed in order to promote certainty, whereas the granting of special leave would promote uncertainty, is the statement that this is an issue which simply has to be determined because, I think the language is there are whispers which will not go away until it is finally determined.

One of the matters raised by the members of the Court during the special leave application was whether or not a section such as section 33N and I think it is section 33ZF, which empower the court to act of its own motion, was a matter which particularly attracted worthy consideration as to constitutional validity.

HIS HONOUR: Section 33ZF. Yes, I see. But has the court made any order on its own motion?

MR BANNON: No, it has not. If the fallout from the constitutional attack, however - - -

HIS HONOUR: Anyhow, assuming that argument, whatever it is, is correct, you would just read it down, would you not, and it would still apply?

MR BANNON: That is certainly a potential outcome, but not necessarily the outcome. In other words - - -

HIS HONOUR: Why?

MR BANNON: Well, the potential fallout from a constitutional attack may be, if, for example, section 33N was invalid because it included a reference to "own motion", does the whole section go or is it severable? Does the whole part go?

HIS HONOUR: That is right. It is clearly severable at the moment to my mind.

MR BANNON: And that may well be the ultimately correct position, but it may not be. But we could fall between two stools. In the circumstances, we certainly do not say that 33N is constitutionally invalid, but if before the Court there is an issue which raises that validity and we ended up having been thrown out by a 33N application in circumstances where a constitutional review would have perhaps feasibly thrown out that section but left the bath otherwise intact.

The proceedings in the light of the 33N application been successful continue by virtue of section 33P, which is also part of the whole legislative aspect, and the continuance under 33P is ineffective or invalid if the constitutional argument is correct. Hence, it is not moot because those proceedings will continue by virtue of 33P. Lastly, the limitation issue which has recently been raised raises this consideration, that - - -

HIS HONOUR: We do not know what it is at the moment. It seems to be pregnant with the proposition that section 79 of the Judiciary Act is invalid because it picks up State limitation laws, that is to say that section 79 is itself beyond power and that this is just a fortiori because this is a specific limitation provision.

MR BANNON: We do not embrace the suggestion that there is any validity in the proposition, but nevertheless the attack is sought to be made. It raises this consideration, namely that if - - -

HIS HONOUR: I am also not sure what the consequence would be. Assume that a suspension were invalid, with respect to common law claims there would be no limitation period I suppose. There would be no applicable statute cutting down the common law which has no limitation period. All these things have to be thought about I think.

MR BANNON: Yes, but if we have the High Court hearing - - -

HIS HONOUR: I mean thought about before this notice is reformulated so that I do not have to sit here pondering it, nor does the Solicitor-General have to sit here pondering it.

MR BANNON: No, but for our part and for those whose interests we represent by virtue of the part, at the moment, if such suspension is needed, the suspension period section operates. If we succeed in the appeal to the Full Federal Court but then subsequently there is a determination that the - - -

HIS HONOUR: But the fact of the matter is, Mr Bannon, to get into the real world, given the way these litigants fight this case, with the limit of their rights to do so, whatever the outcome in the Full Federal Court with respect to the Justice Stone decision, there will be a special leave application here.

MR BANNON: Yes, which supports the proposition that the proceedings are not moot.

HIS HONOUR: I do not usually chat about case management but the fact is that that special leave application should be linked to the subsisting one and in the meantime the subsisting one should not be disposed of.

MR BANNON: Can I just say this in conclusion. The alternative proposition is that in a sense everything we do in the Federal Court, and the Full Federal Court in particular, is a waste of time and money if the whole section is invalid. That is not to say that the interests of the Federal Court should be put before that of the High Court but, on the other hand - - -

HIS HONOUR: But at the moment the federal legislation has been held valid.

MR BANNON: That is so.

HIS HONOUR: As an ordinary prudential matter this Court should not embark upon an attempt to show that it is invalid which may prove moot.

MR BANNON: I think all I can do is repeat what we said at the special leave application, that is to say we wish to have certainty. Our proposition was that the Full Federal Court decision promoted certainty. The proposition from the Bench, in effect, was not really because for as long as the whispers are around it will never be resolved and it will only be resolved if this Court seizes the opportunity which it has grasped for itself.

HIS HONOUR: At the moment it has been resolved because four judges in the Federal Court have said it is valid.

MR BANNON: May it please the Court.

HIS HONOUR: Yes, Mr Deakin.

MR DEACON: We would respectfully adopt what fell from your Honour, that the two proceedings - I think there will be a special leave application by whoever loses in the Full Federal Court and the present matter should be stood over to a time when it can be linked with that foreshadowed application by whoever brings it.

HIS HONOUR: Thank you. Mr Solicitor.

MR BENNETT: Yes, we take the same approach, your Honour. I must say I did not expect to come to a mention and possibly lose section 79 of the Judiciary Act.

HIS HONOUR: Only insofar as it picks up limitation laws it would seem.

MR BENNETT: Yes. I assume the limitation attack is based on section 51(xxxi), but that clearly has to be clarified.

HIS HONOUR: I am not sure about that either because 51(xxxi) was not before Justice Lehane. It was in the Full Court but on a different footing I think.

MR WALKER: Yes, it was a different footing, your Honour.

HIS HONOUR: Yes.

MR BENNETT: I assumed it was some sort of extension of Smith v ANL, but if it is not, that is all more the reason why - - -

HIS HONOUR: All the more reason for clarifying it, I think.

MR BENNETT: Yes. We would support, of course, ultimately the special leave applications being united and all the constitutional points being heard together.

HIS HONOUR: Thank you. I have said:

1. Rescind the direction in the orders made 15 December 2000 referring the special leave application to the Full Court and vacate the listing of that special leave application for the November sittings;

2. Stand over the special leave application to be relisted before a special leave panel together with any special leave application arising from the pending Full Court proceedings respecting the judgment of Justice Stone dated 19 October 2001;

3. Liberty to apply on seven days notice in writing;

4. Costs of today be costs of the special leave application.

Thank you, gentlemen. I will now adjourn.

AT 9.48 AM THE MATTER WAS CONCLUDED