Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2007] HCATrans 333 (4 July 2007)

Last Updated: 10 July 2007

[2007] HCATrans 333

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M67 of 2007

B e t w e e n -

CADBURY SCHWEPPES PTY LTD

Applicant

and

DARRELL LEA CHOCOLATE SHOPS PTY LTD

Respondent

Application for expedition

GLEESON CJ

TRANSCRIPT OF PROCEEDINGS

FROM SYDNEY BY VIDEO LINK TO MELBOURNE

ON WEDNESDAY, 4 JULY 2007, AT 2.20 PM

Copyright in the High Court of Australia

MR N.C. HUTLEY, SC: If your Honour pleases, I appear with my learned friends, MR M.D. WYLES and MR S.M. REBIKOFF, for the applicant on the special leave application, the respondent to the motion. (instructed by Mallesons Stephen Jaques)

MR J.W.S. PETERS, SC: If your Honour pleases, I appear on behalf of the respondent. (instructed by Middletons)

HIS HONOUR: You are the moving party in this application. Yes, Mr Peters.

MR PETERS: Your Honour, this is the respondent’s application for an abridgement of time in respect of the steps the applicant must complete and the respondent must complete before the special leave application is heard. Your Honour, the application is supported by an affidavit of Mr Watson and it is opposed on an affidavit by Ms Hickey.

HIS HONOUR: Is there any objection to those affidavits? I have read those affidavits.

MR PETERS: Yes, your Honour, there is one matter I say that really is inadmissible opinion by Mr Watson, which I do not think either side puts any store in, which I would seek not to rely on, your Honour. It is just that Mr Watson expresses his opinion about something.

HIS HONOUR: All right, well let us not take time with that.

MR PETERS: Thank you, your Honour. Your Honour, the test we accept is set out in Gallo, namely what is in the interests of justice between the parties. What we seek is an expedition of the hearing to avoid a delay of the further rehearing of the original application in the Federal Court.

HIS HONOUR: Mr Peters, I noticed somewhere in the papers somebody has set out the timeframe that would follow if there is no expedition order. Where do I find that most conveniently?

MR PETERS: That is in Mr Watson’s affidavit, your Honour, and it is in paragraph 12.

HIS HONOUR: Now, if that timetable were followed, the matter would be ready to be dealt with by 31 August 2007 and that causes some problem with Justice Heerey in some way, does it?

MR PETERS: That is correct, your Honour. The problem is more for us and that is why we bring the application. Justice Heerey is starting a long
cause in October which the evidence is, I think fair to say, will prevent this matter coming on before him until next year. I should say, your Honour, we do not suggest that we be delayed more than say March of next year.

HIS HONOUR: I am sorry, what are you trying to achieve by this expedition?

MR PETERS: We are trying to achieve a hearing of the special leave application on 3 August. If it is determined favourably from the respondent’s point of view, the rehearing can occur on 3 September, otherwise we will be - - -

HIS HONOUR: Before Justice Heerey?

MR PETERS: Yes, your Honour.

HIS HONOUR: Yes, otherwise what?

MR PETERS: Otherwise we will be delayed until March next year.

HIS HONOUR: Now, the problem seems to be that you want to give the other side only until 9 July to file their summary of argument. That is five days away. They say that is too short.

MR PETERS: Yes, your Honour, but I do note from Mr Watson’s affidavit it is only four days earlier than they would have to file it. Paragraph 12(a). It is currently due on 13 July.

HIS HONOUR: What makes anybody think there needs to be a hearing of this application for special leave anyway?

MR PETERS: Your Honour, we would be content for it to be dealt with on the papers.

HIS HONOUR: What about you, Mr Hutley?

MR HUTLEY: Your Honour, I think it would be necessary at least to – the Court may be assisted by contextualising it to some extent as to how the appeal was run in other matters.

HIS HONOUR: We do not need to persuade anybody of that. Two Justices of the Court can decide to hear the matter without any oral argument - - -

MR HUTLEY: Quite, yes.

HIS HONOUR: If people are on notice of the fact that it will be dealt with without oral argument, they can prepare their written materials accordingly.

MR HUTLEY: One can always be deluded by one’s own capacity to add anything.

HIS HONOUR: Yes. I will just speak to Mr Hutley for a moment, Mr Peters – it just occurred to me, Mr Hutley, that the time pressure proposed by this expedition could be relieved to some extent if the papers were prepared on the basis that as soon as they are completed they would be referred to Justice Hayne and Justice Crennan in Melbourne who would then look at them and decide whether the matter could be dealt with on the papers and - - -

MR HUTLEY: That, in the ordinary - your Honour, assuming I take it that the ordinary timetable applied out for 31 August or whatever - - -

HIS HONOUR: Yes, or perhaps with some slight contraction.

MR HUTLEY: Well, your Honour, if then their Honours were to conclude that the matter would be assisted by some form of argument or one was in a situation where they considered three Justices should hear the matter, would it be possible then to have it determined prior to the commencement of - what is assumed at the moment to be the commencement of the hearing before Justice Heerey on - - -

HIS HONOUR: No, because the next special leave day after 3 August is 7 September. In fact, I think that has probably been changed now to 31 August because, as you know, there is a particular problem in Sydney about 7 September. I think, Mr Peters, the special leave day after 3 August is going to be 31 August, that is for oral argument. We are having special leaves on 31 August, but they are for Sydney and, I think, Canberra.

MR PETERS: We could accommodate - - -

MR HUTLEY: And then Sydney is probably going to be full, as it usually is, but if there was an opportunity to have it heard in - - -

HIS HONOUR: What about if we did this, Mr Hutley? I will just suggest a couple of dates to you. If we leave you with your date of 13 July as the date for the preparation of your summary of argument and then, since it is the respondent that is pressing this, we shorten the time for delivery of the respondent’s summary of argument until say 27 July. That gives you a fortnight, Mr Peters. Then we give you a week to reply to that, Mr Hutley,
which is 3 August, and say the application book would be due – how long would it take you to print an application book?

MR HUTLEY: We should be able to – with our application we have to settle with the other side materials. A week at the outside.

HIS HONOUR: All right, by 10 August. What about if I direct that if the parties comply with those times and then I will direct the Deputy Registrar in Melbourne on Monday, 13 August, to refer the papers in the matter to a panel consisting of Justices Hayne and Crennan so that they can consider whether the matter can be disposed of without oral argument and, if so, what the disposition ought to be. Then the future conduct of the matter after that can take place in light of what decision they make. It would be entirely a matter for them to decide. I have no views one way or the other. Indeed, I am not even very sure I understand what the special leave application is going to be all about.

MR HUTLEY: I cannot say anything.

HIS HONOUR: Are you happy with that, Mr Peters?

MR PETERS: Yes, thank you, your Honour.

MR HUTLEY: Can I just say one or two things. Your Honour, the Full Court’s judgment contemplated a possibility that Justice Heerey might be persuaded that he was not in a position to conduct the hearing. That application is yet to be made because of timing requirements. That will be made and that may render moot the whole process, the urgency or the process for that matter because it seems to be contemplated by the Full Court that in the event that Justice Heerey does not entertain the further hearing, to use the terminology adopted by the Full Court, there would be a complete new trial before another judge. So I think the Court should be advised of that, but other than that, we are content.

HIS HONOUR: All right, thank you. Do you have a note of those dates sufficiently from the transcript?

MR HUTLEY: Yes.

HIS HONOUR: I will not abridge the time for filing the applicant’s summary of argument and draft notice of appeal, but I will abridge the other times as I have already indicated and I will direct the Deputy Registrar in Melbourne on 13 August, by which time all the papers should be in, to refer the papers to Justices Hayne and Crennan in Melbourne so that they, at their convenience, can give consideration to whether the matter can be dealt with without oral argument and if they think it can, what they think the disposition ought to be. Costs of today’s hearing can be costs in the application for special leave to appeal.

MR PETERS: If your Honour pleases.

AT 2.31 PM THE MATTER WAS ADJOURNED