Bright v Femcare Limited

[2001] FCA 1741

FEDERAL COURT OF AUSTRALIA

Bright v Femcare Limited [2001] FCA 1741

KERRIE BRIGHT v FEMCARE LIMITED
N 410 of 1999

SACKVILLE J
SYDNEY
23 NOVEMBER 2001

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N410 of 1999

BETWEEN:	KERRIE BRIGHT APPLICANT
AND:	FEMCARE LIMITED FIRST RESPONDENT
AND:	ENDOVASIVE PTY LIMITED SECOND RESPONDENT
JUDGE:	SACKVILLE J
DATE OF ORDER:	23 NOVEMBER 2001
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application for leave to appeal, together with any substantive appeal, be allocated a date for hearing at the Full Court callover on 13 February 2002.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N410 of 1999

BETWEEN:	KERRIE BRIGHT APPLICANT
AND:	FEMCARE LIMITED FIRST RESPONDENT
AND:	ENDOVASIVE PTY LIMITED SECOND RESPONDENT

JUDGE:	SACKVILLE J
DATE:	23 NOVEMBER 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is a directions hearing in relation to an application for leave to appeal from a judgment of Stone J delivered on 19 October 2001. Her Honour made orders pursuant to s 33N of the Federal Court of Australia Act 1976 (Cth) (“Federal Court Act”) that representative proceedings no longer continue under Pt IVA of the Federal Court Act.  The only other order made by her Honour was that the proceedings be stood over and that the parties file written submissions as to costs.

2. The debate before me has concerned the conduct of the application for leave to appeal and of the appeal should leave be granted.  To some extent I was at cross-purposes with Mr Walker SC, who appeared for the first respondent, in relation to the appropriate procedure to be adopted.  However, Mr Walker's position, which was adopted by Mr Butcher on behalf of the second respondent, is that the respondents should have an opportunity to argue against the grant of leave to appeal without necessarily being required to address all of the arguments that would be raised on the substantive appeal.  In my view, subject to any contrary direction of the Full Court, that is appropriate.

3. It seems to me that the most efficient course is for the application for leave to appeal to be listed for hearing before a Full Court.  Should leave be granted the appeal would be listed for hearing before the Full Court at the same time.  Subject to any contrary direction of the Full Court, this would provide Mr Walker and those representing the second respondent, with an opportunity to put their submissions as to why leave should be granted without the necessity of going into full argument on the substantive appeal.

4. I have been informed by the parties that the application for leave to appeal and the appeal itself could be dealt with in perhaps a day and a half or somewhat less.  Having regard to this, it seems to me that the most efficient use of the Court's resources would be achieved by listing the application for leave to appeal on the same day as the appeal, should leave be granted.

5. Mr Bannon SC, who appeared with Mr Clarke for the applicants, has very fairly indicated that he may wish to put to the Full Court the proposition that the entirety of the applicants’ arguments on the substantive appeal should be addressed prior to the application for leave to appeal being determined.  That course will be open to Mr Bannon.  It is not appropriate for me to attempt to constrain the Full Court as to the conduct of the proceedings once the matter is before that Court.

6. The approach that should be taken therefore, is for the application for leave to appeal to be listed before a Full Court on a date to be advised.  The appeal itself will be listed on the same day but the appeal will be heard only if leave is granted.  These directions, however, will be subject to any contrary direction by the Full Court itself.

7. The direction that I make is that the application for leave to appeal be placed in the next callover on 13 February 2002 for the making of further directions and the setting of a date for the hearing of the application for leave to appeal.  Directions will be made at the callover for the filing of written submissions in relation to the application for leave to appeal and the appeal itself should leave be granted.  The precise timing of those submissions will be dependent upon the date that is selected for the hearing of the application for leave to appeal and the appeal itself should leave be granted.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville.

Associate:

Dated:             23 November 2001

Counsel for the Applicants:	Mr A Bannon SC with Mr J Clarke
Solicitor for the Applicants:	Maurice Blackburn Cashman
Counsel for the First Respondent:	Mr B Walker SC
Solicitor for the First Respondent:	Freehill Hollingdale Page
Counsel for the Second Respondent:	Mr I Butcher
Solicitor for the Second Respondent:	Sparke Helmore
Date of Hearing:	23 November 2001
Date of Judgment:	23 November 2001