Philip Morris Limited v The Commonwealth of Australia; British American Tobacco Australias Limited & Ors v The Commonwealth of Australia; Van Nelle Tabak Nederland BV & Anor v The Commonwealth of Australia; JT International SA v The Commonwealth of Australia [2012] HCATrans 2 (24 January 2012)

Last Updated: 25 January 2012

[2012] HCATrans 002

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M173 of 2011

B e t w e e n -

PHILIP MORRIS LIMITED ACN 004 694 428

Plaintiff

and

THE COMMONWEALTH OF AUSTRALIA

Defendant

Office of the Registry
Sydney No S389 of 2011

B e t w e e n -

BRITISH AMERICAN TOBACCO AUSTRALASIA LIMITED ACN 002 717 160

First Plaintiff

BRITISH AMERICAN TOBACCO (INVESTMENTS) LIMITED BCN 00074974

Second Plaintiff

BRITISH AMERICAN TOBACCO AUSTRALIA LIMITED ACN 000 151 100

Third Plaintiff

and

THE COMMONWEALTH OF AUSTRALIA

Defendant

Office of the Registry
Sydney No S399 of 2011

B e t w e e n -

VAN NELLE TABAK NEDERLAND BV

First Plaintiff

IMPERIAL TOBACCO AUSTRALIA LIMITED ACN 088 148 681

Second Plaintiff

and

THE COMMONWEALTH OF AUSTRALIA

Defendant

Office of the Registry
Sydney No S409 of 2011

B e t w e e n -

JT INTERNATIONAL SA

Plaintiff

and

THE COMMONWEALTH OF AUSTRALIA

Defendant

Directions

GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 24 JANUARY 2012, AT 9.30 AM

Copyright in the High Court of Australia

__________________

MR A.C. ARCHIBALD, QC: If your Honour please, I appear with MR P.H. WALLIS for Philip Morris. (instructed by Allens Arthur Robinson)

MR A.J. MYERS, QC: May it please, your Honour, I appear in S389 on behalf of the British American Tobacco companies, the plaintiffs. (instructed by Corrs Chambers Westgarth Lawyers)

MR B.W. WALKER, SC: May it please the Court, I appear with my friend, MR C.L. LENEHAN, in 399 of 2011 for the plaintiffs. (instructed by Mallesons Stephen Jaques)

MR G.A. HILL: May it please the Court, I appear for JT International in S409 of 2011. (instructed by Johnson Winter & Slattery)

MR S.J. GAGELER, SC, Solicitor-General of the Commonwealth of Australia: If your Honour pleases, with MR S.B. LLOYD, SC I appear in each matter for the defendant. (instructed by Australian Government Solicitor)

HIS HONOUR: Now, Mr Solicitor, last week you circulated a proposed set of procedural steps.

MR GAGELER: Yes.

HIS HONOUR: Has that been given to the other parties?

MR GAGELER: Yes, your Honour.

HIS HONOUR: Is there any - - -

MR GAGELER: Is there any departure from it? I think not.

MR ARCHIBALD: There is not on our account.

HIS HONOUR: Is that right, gentlemen.

MR MYERS: We agree.

MR WALKER: No, we are happy with it.

HIS HONOUR: Very well. Yes, I think it is your client, Mr Myers, which relies not only upon registered marks, but it complains of the treatment by the legislation of its common law marks.

MR MYERS: Yes, that is correct.

HIS HONOUR: Does that involve any extra complexity in terms of preparation?

MR MYERS: No one has suggested so.

HIS HONOUR: All right. Thank you. Now, I had previously listed some of these matters for 21 February. That will be vacated under this system, will it not?

MR GAGELER: I should say that the consensus, your Honour, for the day to bring the matter back in the week of 20 February would be the 23rd, if that would be suitable to your Honour.

HIS HONOUR: Yes. So I will vacate those directions fixing upon the 21st and substitute the 23rd at 9.30 in Sydney in all four matters.

MR GAGELER: Your Honour, the only other slightly technical variation to the proposed orders would be in the Philip Morris proceedings. It is not necessary for there to be an order in terms of the proposed order 3.3.

HIS HONOUR: Very well then. So that in matters S389 and S399 – that is the British American Tobacco and the Nederland Case – I order:

1. That the defendant file and serve its defence to the statement of claim on or before 7 February.
   
2. That the defendant serve a proposed draft special case on or before 7 February.
   
3. The proceedings be listed for directions before me on 23 February at 9.30 in Sydney.
   
4. Costs of today will be reserved.
   

Those directions are given, as I say, in both S389 and S399. In S409 I direct:

1. The defendant file and serve its defence to the statement of claim on or before 7 February.
   
2. The defendant serve a proposed draft special case on or before 7 February.
   
3. Dispense with compliance of rule 27.06 of the High Court Rules.
   
4. That proceeding be listed for directions before me on 23 February at 9.30 in Sydney.
   
5. Costs reserved.
   

In the remaining matter, M173, I order:

1. The defendant file and serve its defence to the statement of claim on or before 7 February.
   
2. The defendant serve a proposed draft special case on or before 7 February.
   
3. The proceeding be listed for directions on 23 February before me in Sydney at 9.30.
   
4. Costs reserved.
   

The Court has earlier indicated that three days have been reserved on 17, 18 and 19 April as the target dates for the hearing. Does this timetable fit in with that?

MR ARCHIBALD: For our part we think it does, quite comfortably, your Honour.

MR MYERS: Yes, we agree, your Honour, and we are grateful for those early dates.

HIS HONOUR: Very well. Is there anything else? All right. I thank counsel for their assistance and I will now adjourn.

AT 9.37 AM THE MATTERS WERE ADJOURNED