Firebelt Pty Ltd v Brambles Australia Limited t/a Cleanaway & Ors B52/2001 [2001] HCATrans 624 (27 November 2001)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B52 of 2001

B e t w e e n -

FIREBELT PTY LTD

Appellant

and

BRAMBLES AUSTRALIA LIMITED trading as CLEANAWAY

First Respondent

COOLOOLA SHIRE COUNCIL

Second Respondent

THE STATE OF QUEENSLAND

Third Respondent

Directions Hearing

GUMMOW J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 27 NOVEMBER 2001, AT 9.30 AM

Copyright in the High Court of Australia

MR J.J. GARNSEY, QC: If your Honour pleases, I appear with MR C.J. CARRIGAN for the appellant. (instructed by Xavier Kelly & Co)

MR R.I.M. LILLEY: If your Honour pleases, I appear for the respondent, Brambles. (instructed by Deacons)

MR GARNSEY: Your Honour, I understand this matter has been put in for directions by the honourable Chief Justice initially before your Honour.

HIS HONOUR: Yes. What it comes to, I think, is this: we granted limited leave on obviousness, did we not? The other ground, best method, I think, dropped out.

MR GARNSEY: Yes, that was decided in our favour by the Full Court.

HIS HONOUR: Yes, and there is no cross-appeal on that.

MR GARNSEY: That is so.

HIS HONOUR: There is, however, a notice of contention which would keep alive those further grounds that were not dealt with by the Full Court, is that right?

MR GARNSEY: Well, seeks, somehow, to keep alive the grounds which are not dealt with by the Full Court because they were elected not to be argued before the Full Court.

HIS HONOUR: That is a debate they can have in due course, I think.

MR GARNSEY: And the notice of contention makes it clear that what is being sought is some reconsideration of the decision of the trial judge from which an appeal would not lie to this Court under section 33 of the Federal Court Act, an appeal only lying from the Full Court.

HIS HONOUR: Yes, that is right. To make things clear: I have spoken to the Chief Justice who was the other Judge granting leave with myself. It is our view that what we will deal with is the obviousness argument on the appeal and then, depending on how that turns out, we will refer back to the Full Court any debate you want to have about the vitality of the notice of contention and the resolution of the issues that would arise on the notice of contention. And the appeal books should be formulated here, accordingly.

MR GARNSEY: That is in relation to obviousness but not the other material in relation to the notice of contention.

HIS HONOUR: Yes, that is right.

MR GARNSEY: Yes, your Honour. We have handed to our learned friend this morning a short summary of our submissions as to why the notice of contention is not permitted under the Rules and the Act.

HIS HONOUR: Well, you will be debating about that in the Full Court. You will not be debating it in this Court.

MR GARNSEY: No. So long as we are not debating it on the 13th, your Honour.

HIS HONOUR: No, you will not be debating it on the 13th. You will have enough other things to talk about, I think.

MR GARNSEY: Yes.

HIS HONOUR: But to make it quite clear, depending on the outcome of the debate on obviousness, the Court will allow or disallow the appeal and will, if need be, refer back to the Full Court consideration of the issues in what you say is the alleged notice of contention which will include in it any debate you want to have about what was the effect of counsel's undertaking or whatever it was in the Full Court, and we are not going to get involved in it full stop.

MR GARNSEY: No. If your Honour pleases, we would submit, your Honours - - -

HIS HONOUR: You can submit as much as you like about the notice - - -

MR GARNSEY: - - - should not get involved in it because we would say your Honours cannot.

HIS HONOUR: Well, you may say that but your opponent will say the opposite, so why should we debate it? Right. Now, is there anything else?

MR GARNSEY: I am not sure. Not on our part, your Honour.

HIS HONOUR: In other words, is there some measure of understanding as to what now goes into the appeal book so it can be got on with?

MR GARNSEY: Yes.

HIS HONOUR: Mr Lilley?

MR LILLEY: I think that is right, your Honour. The only submission I wanted to make was that the matters in the notice of contention should perhaps be remitted to the Full Court first because that may remove the - - -

HIS HONOUR: No. You are hardly going to resolve that by - that was something to agitate on the leave application, if I may say so. We are hardly likely to disengage our list, which is already rather pressured, to deal with that sort of submission when it is fixed for the next sittings. All right?

MR LILLEY: Very well, your Honour.

HIS HONOUR: But is there an understanding as to what now goes in the appeal book?

MR GARNSEY: Yes, your Honour.

MR LILLEY: I think there is, your Honour.

HIS HONOUR: All right. I do not need to make any formal order, I think. The Court will adjourn until 2 pm.

AT 9.34 AM THE MATTER WAS CONCLUDED