Brookfield & Anor v Yevad Products Pty Ltd

[2007] HCATrans 196

[2007] HCATrans 196

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A4 of 2007

B e t w e e n -

IAN WALTER BROOKFIELD

First Applicant

SEPTIC PRODUCTS AUSTRALIA PTY LTD (IN LIQUIDATION)

Second Applicant

and

YEVAD PRODUCTS PTY LTD (FORMERLY TRADING AS DAVEY PRODUCTS PTY LTD)

Respondent

Summons for expedition

CRENNAN J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO ADELAIDE

ON FRIDAY, 4 MAY 2007, AT 11.29 AM

Copyright in the High Court of Australia

MR I.W. BROOKFIELD appeared in person.

MR R.J. WHITINGTON, QC:   May it please your Honour, I appear for the respondent.  (instructed by Thomson Playford Lawyers)

HER HONOUR:   Yes, thank you, Mr Whitington.  Yes, Mr Brookfield.  You are applying for an application for special leave to be expedited?

MR BROOKFIELD:   Yes, I am, your Honour.

HER HONOUR:   I can inform you that the application for special leave is to be referred to a panel of two Justices to be considered in accordance with rule 41.10.5 of the High Court Rules and it can then be dealt with expeditiously as the business of the Court permits.

MR BROOKFIELD:   Is your Honour able to enlighten us as to what the current timetable is in relation to the panel’s sittings and hearings?

HER HONOUR:   I am not in a position to do that, but it will be dealt with as expeditiously as the business permits.

MR BROOKFIELD:   Thank you.  I certainly approached it on the basis that, because the matter is to be tried afresh in the Federal Court and has been on foot for 14 years because I was uncertain as to how long the panel sitting time was, obviously the new Federal Court trial cannot proceed until such times as final determination on this matter.

HER HONOUR:   Those matters will be noted.

MR BROOKFIELD:   I hear what your Honour says in relation to it being referred to the two panel ‑ ‑ ‑

HER HONOUR:   Yes, it will be referred and it will be dealt with as expeditiously as business permits, noting that you sought today to have some sort of expedition.  It seems to me the appropriate way of dealing with the matter is to indicate, as I have done, that it will be dealt with as expeditiously as business permits.

MR BROOKFIELD:   Thank you.

HER HONOUR:   Mr Whitington, do you wish to make any submissions?

MR WHITINGTON:    No, your Honour. My client’s position is that they do not oppose whatever expedition the Court could give, but I might simply observe in passing, your Honour, that it would be our submission that, should an extension of time be granted, the application for special leave is incompetent in any event by virtue of section 33 of the Federal Court of Australia Act, the judgment under complaint being a judgment of a single judge of the Federal Court.  If the Court pleases.

HER HONOUR:   Yes.  What I am minded to do, Mr Whitington, is simply order that the summons be dismissed, unless you have any other application to make.

MR WHITINGTON:   If that is to be the order, we would seek costs of the application, if the Court pleases.

HER HONOUR:   Do you wish to say anything, Mr Brookfield?

MR BROOKFIELD:   My only response to that would be, your Honour, that in light of the fact I do not know what the panel’s current sitting time is, if the panel’s current sitting time was, say, two to four weeks, then obviously my summons would have been probably without merit or foundation, but if the panel’s sitting time is six or 12 months away, in light of the fact that I have a Federal Court matter about to be retried afresh, then my application on lack of the summons would be warranted. 

So I am sort of in a position where obviously I would oppose costs because I believe that my application to bring this matter for an expedited special leave application would be more than warranted.  It makes it a little bit difficult me not knowing how far away the panel’s sitting time is.  If the panel’s sitting time is only two weeks away, then I would not have even bothered making the application.  But as applicants and participants to the Court where we do not know when we are going to be receiving answers by way of judgments or sitting panels, et cetera, we are flying blind, so to speak.  So we make the applications as we see them fit in order to bring these matters before the Court as quickly as we possibly can.

HER HONOUR:   I will make no order as to costs.  The order will be the summons is dismissed.

MR BROOKFIELD:   Thank you, your Honour.

AT 11.33 AM THE MATTER WAS CONCLUDED