Hospital Products Limited v United States Surgical Corporation

[1993] HCATrans 365

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S81 of 1983

B e t w e e n -

HOSPITAL PRODUCTS LIMITED

Applicant

and

UNITED STATES SURGICAL

CORPORATION

First Respondent

SURGEONS CHOICE INCORPORATED

Second Respondent

BALLABIL HOLDINGS PTY LIMITED

Third Respondent

ALAN RICHARD BLACKMAN

Fourth Respondent

I.R.D. ENGINEERING SERVICES PTY

LIMITED

Fifth Respondent

For directions

GAUDRON J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 3 DECEMBER 1993. AT 9.39 AM

(Continued from 1/10/93)

Copyright in the High Court of Australia

Hospital(3) 4 3/12/93

MR S.J. GALLANT:  I appear for the first respondent. (of

A.G. Robinson Creais)

MS J.T. FITZHENRY:  May it please Your Honour, I appear for

Hospital Products, the applicant. (of Baker &

McKenzie)

MR GALLANT:  There are no other parties that we anticipate

being represented today, Your Honour.

HER HONOUR:	Yes, thank you.
MR GALLANT:	Your Honour, this is a matter that comes back

before you, after having last been before the

Court -

HER HONOUR:  Did I not stay the taxation, by consent?

MR GALLANT: That is correct, Your Honour, by short minutes

of order made on - they are not dated, Your Honour,

I do apologize - I believe on about 10 October,

Your Honour.

HER HONOUR:  Yes. Nothing turns on that.

MS FITZHENRY: October 1.

MR GALLANT:  1 October, I do apologize, Your Honour. On

that occasion, Your Honour made orders in relation

to the filing of affidavits. Those orders have now

been complied with, Your Honour, and we would seek

to hand up to Your Honour further short minutes of

order in relation to further interlocutory steps
that the parties have agreed would be desirable for

the running of this matter.

Your Honour, the only matter on which we would

seek the Court's assistance is in relation to

order 7. We would be asking that this matter come

back before Your Honour again, at which time we

would anticipate we would be asking Your Honour to

fix a hearing date.

Your Honour, the orders that I hand up to

Your Honour, if I might -

HER HONOUR:  Starting at the first one: 21 January 1993 is

gone.

1994, I do apologize, Your Honour.

quickly but not that quickly, Your Honour; or

slowly, but not that slowly, my friend would rather

have it, Your Honour. Yes, 1994 again for order 3,

Your Honour.

HER HONOUR:	Yes.
Hospital(3)	3/12/93

MR GALLANT: This matter, Your Honour, has a lengthy,

lengthy background, I think it is fair to say. The

facts in dispute, Your Honour: whilst the matter

turns on a question of costs, it has been agreed by
the parties that it would be useful, we believe, to

the Court to attempt to agree a statement of facts.

The orders that I have -

HER HONOUR:  Do those facts go to the claimed lien, as it

were, to use a - set-off, a claimed set-off?

MR GALLANT:  They do, we would submit, go to the set-off,

Your Honour. It is somewhat difficult in that the

matters that the first respondent will wish to put

before the Court going to the circumstances in

which the United States judgment - an amount of

some $73 million - arise, on behalf of the first

respondent, it would be submitted that the facts

behind that judgment are highly relevant. My

friend has served a notice to admit facts which

does refer also to the circumstances surrounding

that US judgment. If the parties were to be put to

proof of that matter, it may well be that

Your Honour could anticipate two or three weeks of

hearing time purely as to evidence and it is that

reason that - - -

HER HONOUR:	I will not anticipate it; somebody else might.
MR GALLANT:	Yes, Your Honour.  It is for that reason that

we attempted to deal with the matter by agreed

facts. The orders are somewhat unusual,

Your Honour, but the parties see that that might be

the way in which the Court's time could be best

spent.

HER HONOUR:  Yes, thank you. I can list it for mention in

the week commencing 14 February.

MS FITZHENRY: That is convenient, Your Honour.

MR GALLANT: That would be convenient, Your Honour.

HER HONOUR: Should I list it for the 14th, in fact? That

is a Monday.

MS FITZHENRY: That is convenient, yes, Your Honour.

MR GALLANT: That is convenient, Your Honour.

HER HONOUR:  The matter is stood over then to 14 February

1994 at 9.30 am for further mention. Otherwise, I

will make orders by consent in accordance with the

short minutes of order as initialed by me and

placed with the papers.

Thank you, Your Honour.

Hospital(3) 6 3/12/93

MS FITZHENRY:	May it please the Court.
HER HONOUR:	Nothing to do with costs on this occasion?
No, Your Honour.

AT 9.45 AM THE MATTER WAS ADJOURNED

UNTIL MONDAY, 14 FEBRUARY 1994

Hospital(3) 7 3/12/93