Hospital Products Limited v United States Surgical Corporation

[1992] HCATrans 123

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

Application for leave of a

Justice pursuant to

Order 60 rule 12(2)

GAUDRON J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 23 APRIL 1992, AT 10.17 AM

Copyright in the High Court of Australia

Hospital 1 23/4/92

MR B.R. McCLINTOCK: If the Court pleases, I appear in this

matter with my learned friend, MR D. FREDERICKS.

(instructed by Baker & McKenzie)

MR B. WALKER:  May it please Your Honour, I appear for the

first respondent. (instructed by A.G. Robinson)

HER HONOUR:  The other respondents are not parties to the

application or are?

MR McCLINTOCK:  They are not parties to the application, as

I understand the position, Your Honour.

Could I say this before I go any further:

what it is, Your Honour, is an application under

Order 60 rule 12(2) of the Court's Rules for an

order permitting my client, who was the appellant

in the proceedings - the successful appellant - to

take a step in the proceedings or in the appeal, no

step having been taken for six years.

There haa been a deal of affidavit material

served by us, Your Honour. At some stage last

night my instructing solicitor received three draft

affidavits from Mr Walker's solicitors and at

10 to 10 today, Your Honour, I was given this

material here which is the exhibits to the

affidavits, which I have in my hand now.

Your Honour, I have had the barest time to read the

affidavits themselves and I have not had time,

other than to flick over the pages of this material

here, and I am not in the position, unfortunately,

Your Honour, to deal with that material this

morning.

In those circumstances, Your Honour, my

application is that the matter stand over to a date

suitable to the Court. That is really all I have

to say about that, Your Honour, at this stage.

HER HONOUR:	Mr Walker?
MR WALKER:	Your Honour, our material deals with, in

particular, the material which was served on us

either early yesterday or late the day before.	I
understand my friend's position.	We were able to
deal with his material yesterday.	I can understand

why he has not yet had time entirely to deal with

ours.

HER HONOUR: This is a most unsatisfactory situation,

gentlemen. I do not know what happens in other

jurisdictions but this is not the sort of situation

we are used to dealing with in this Court.

Hospital 2 23/4/92

MR WALKER:  Your Honour, what happened was, that the

application was supported by one affidavit. That

led to some inquiries being made by us, as it were,

by way of particulars of certain assertions made.

Following some correspondence, there was then a

supplementary affidavit containing some important

material, both argumentative and factual, by the

solicitor who had sworn the first affidavit in

support of the application. We were able yesterday

to get ourselves into a position to respond to
those matters.

Your Honour, I do not wish to contest the proposition that it is unsatisfactory; however, in

my submission, the respondent is clearly entitled

to respond to all the material that the other side

relies on and that includes this affidavit of

21 April, which is a major affidavit with its

annexures.

HER HONOUR: Well, I suppose there is no choice but to

adjourn.

MR WALKER:  Your Honour, that is the position we find

ourselves in. I am very hard put to say that my

learned friend should be forced on. We were served their affidavit of 21 April under cover of a letter

which insisted that the applicant wished to proceed

today. They did not quite say, "Come what may" but

that was certainly the impression we had which is

why we hastened to prepare our answers yesterday.

Now, Your Honour, there are issues of fact

between the parties on this application which

render it necessary, in order to permit me to make

certain submissions, eventually, that I ask

Mr Beatty some questions in cross-examination, for

example. I do not know whether, in light of the

material that has now been served on the other

side, some of those matters can be the subject of

agreement. I suspect not. It is likely to take,

we think, in the order of a couple of hours, the

application.

HER HONOUR:  What about the costs of today even? Apart

altogether from the Court's costs of the shorthand

writer having been brought from Canberra, what

about the parties' costs today?	I mean, this is an
entirely unsatisfactory situation.	I cannot

believe that - I mean, without apportioning blame
of any sort, I cannot believe that solicitors of

the standing of the respective firms here involved

have let this situation develop.

MR WALKER:  Your Honour, I do not wish, unless Your Honour

wishes me to, to seek to have such matters

apportioned at the moment but we certainly do take

Hospital 23/4/92

the position that we are entitled to respond to

material relied upon by the applicant.

HER HONOUR: That much is true.

MR WALKER:  For those reasons, Your Honour, we would simply

say as to costs that they ought best be reserved because the retrospect of the application itself may well be .... necessary to assess today's costs.

HER HONOUR: It might be necessary.

MR WALKER: It might be necessary, yes. Alternatively, our

submission obviously would be that this has been,

in reality, necessitated by the late service of the

supplementary affidavit. But the history

continues, Your Honour: that supplementary

affidavit clearly responded to some of the concerns

we had raised in correspondence following the first

affidavit. It may be better, with respect, that

all matters are known after the application before

costs of today are addressed between the parties.

MR McCLINTOCK:  Could I say this, Your rlonour: I would

support the suggestion that costs be reserved

rather than dealt with today. But could I say

this, Your Honour - there are one or two points

raised that I feel bound to respond to - while it

is true that one of the affidavits served on my

instructing solicitors is, in a sense, responsive

to the affidavit served earlier this week - also

sworn by Mr Beatty - two of those affidavits, in

fact, are not responsive in that sense and are not

called for by anything in that affidavit.

One of these is an affidavit by a cost

consultant deposing to alleged prejudice that would

occur because of delay. Now, that is not

responsive to anything in Mr Beatty's affidavit.

The second is an affidavit sworn by one of the

solicitors who had the misfortune to work on these

proceedings in the supreme court and the High Court

10 years ago, deposing as to her lack of

independent recollection of what actually occurred

during the course of the appeal to this Court.

Again, that is not responsive to anything in the

earlier affidavit.

Subject to that, Your Honour, as I said, I do

support what Mr Walker said about reserving costs

at this stage and not dealing with them today.

HER HONOUR:  Yes. The matter will have to go over for at

least a fortnight. Is there a date in the

subsequent fortnight that suits everybody.

Hospital	23/4/92
MR McCLINTOCK:	I am not sure that beggars can be choosers,

Your Honour. I think we will take whatever date is

suitable to the Court.

HER HONOUR: There is no problem about that. Within that

fortnight, if there is a date that counsel can

agree on, that would solve - - -

MR McCLINTOCK:  Mr Walker suggests and I would accept, if we

could approach the Registrar when we agree a date.

HER HONOUR:  If you could make sure you are in a position to

go. The Court does have to make quite a few

arrangements to accommodate even an application of

this nature. Otherwise, it is Canberra.

MR McCLINTOCK:  May I apologize, Your Honour, for the

inconvenience.

HER HONOUR:	Yes.
THE DEPUTY REGISTRAR:	Your Honour, if I just might mention:

the material itself is not before the Court.

MR WALKER:  Does Your Honour wish me to seek leave to file

that now or to do it in the Registry?

HER HONOUR:  I think you had better file it in the Registry

when we adjourn. But if there is any problem at

all about the next day, could the Court be

informed, as soon as it even looks like a

difficulty.

MR McCLINTOCK: Certainly, Your Honour.

HER HONOUR:  Very well, the matter will be adjourned to a

date to be fixed.

AT 10.27 AM THE MATTER WAS ADJOURNED

TO A DATE TO BE FIXED

Hospital 23/4/92