British American Tobacco Australia Limited v Secretary, Department of Health and Ageing

In the case of British American Tobacco Australia Limited v Secretary, Department of Health and Ageing, the applicant sought an order for the expedition of its appeal against a decision of the Federal Court. The respondent, initially supportive of the expedition, changed its stance during the hearing, arguing that the matter should be left to the Court's discretion. The crux of the application was the need to balance the potential detriment to the applicant if the appeal was not heard in time to influence the consultation process against the impact on other litigants waiting for their appeals to be heard. The Court had to weigh the necessity of the applicant accessing the legal advice obtained by the respondent against the broader interests of justice and the orderly scheduling of appeals.

The legal issues before the Court involved the principles of expedition in appeal processes and the balance between the rights of the applicant and the impact on other litigants. The Court recognised the importance of the applicant’s ability to participate in the public debate on the legislation's conformity with Australia's international obligations. However, it also noted that the applicant could obtain its own legal advice and that the primary value of the respondent's advice lay in demonstrating that the respondent had been advised of the potential breach of international obligations. The Court concluded that while the applicant's reasons for seeking expedition were not compelling, the potential loss of a significant right tipped the balance slightly in the applicant's favour.

In its reasoning, the Court acknowledged that the applicant's reasons for expediting the appeal were not strong, and expediting the case would disadvantage other appeals. Nevertheless, the Court decided to order that the appeal be given such expedition as the Court could provide, aiming for a hearing in or around the August appeal sittings. The Court also determined that the costs of the application for expedition were to be costs in the appeal, dismissed the applicant’s motion for expedition, and adjourned the respondent’s motion for dismissal of the appeal.

ORDERS:
1. The appeal be accorded such expedition as the Court can provide;
2. The costs of the application by the applicant for expedition are costs in the appeal.
3. The motion, notice of which was filed by the applicant on 1 June 2011 seeking expedition is otherwise dismissed.
4. The motion, notice of which was filed by the respondent on 3 June 2011 seeking dismissal of the appeal is adjourned to 11.00 am on 14 June 2011.