Hospital Products v United States Surgical Corporation

[1995] HCATrans 130

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S81 of 1983

B e t w e e n -

HOSPITAL PRODUCTS

Appellant

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

TOOHEY J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 12 MAY 1995, AT 9.03 AM

Copyright in the High Court of Australia

________________

MS J.T. FITZHENRY:   May it please your Honour, I appear for Hospital Products Ltd.  (instructed by Baker & McKenzie)

MR S. GALLANT:   May it please your Honour, I appear for United States Surgical Corporation.  (instructed by A.G. Robinson Creais)

HIS HONOUR:   As you know, this matter is listed for hearing in less than a fortnight’s time.  I had it brought on this morning so that I could discuss with the representative of the parties the state of play in this matter.

MR GALLANT:   Yes, your Honour, Ms Fitzhenry and I have spoken about the matter, and I think it is fair to say that the matter is ready to proceed in so far as the parties are concerned, that no further directions and no further assistance of the Court is required in bringing the matter to hearing and my friend and I have agreed that the way the matter is likely to proceed is that we would anticipate approximately a day of cross‑examination of witnesses for both parties.  For United States Surgical there would be one witness, Mr Robinson, the deponent of a number of affidavits in the proceedings.  For Hospital Products Limited we would anticipate there would be two witnesses, again being the only deponents of the affidavits in the proceedings that are of any substance of the matters in dispute and it would be anticipated that a day would be taken in the cross‑examination of all of those witnesses.

HIS HONOUR:   Yes

MR GALLANT:   Allowing that time, your Honour, and allowing for some time for opening submissions from learned counsel, one would thereafter anticipate approximately a day or may be a little over for submissions from both counsel, which we would anticipate would take the matter to running something a little over two days.  Your Honour,Justice Gaudron, when setting the matter down and being informed of the timetable along those lines, indicated that for the sake of caution the Court would allow three days for the hearing time, but both Ms Fitzhenry and I agree that it is unlikely to take the full three days.

HIS HONOUR:   Well, it is a matter of some importance, Mr Gallant, in terms of the arrangements that need to be made, particularly as I will be coming from Perth for the purpose of this hearing.

MR GALLANT:   Yes, your Honour.

HIS HONOUR:   If it can be heard in two days, then I do not really want to list it for three days.

MR GALLANT:   Most certainly, your Honour; I think both parties would agree that it would be not safe to tell your Honour that the matter would only take two days, but we would not anticipate that it would take the full three days.

HIS HONOUR:   Well, that is in a sense neither here nor there; the question really is whether it is two days or three days?

MR GALLANT:   Yes.  I think, your Honour, it is safe to say that it would be three days.

MS FITZHENRY:   I would agree with Mr Gallant, your Honour, that it could be too tight to try and tell the Court to list only two days.

HIS HONOUR:   Yes, very well.  Now, Mr Gallant, you made some mention of not needing the assistance of the Court.  Now that might be a bit sanguine; what do you mean by that?

MR GALLANT:   Your Honour, only to this extent that no further directions or any further orders are anticipated of an interlocutory nature to finalise the matter being ready for hearing.  In other words, your Honour, the parties as between themselves, and hopefully as between the requirements of the Court, are of the view that all necessary matters have been attended to to prepare the matter for hearing.

HIS HONOUR:   Well, does that mean that there is a statement of agreed facts?

MR GALLANT:   No, your Honour, there has not been a statement of agreed facts.

HIS HONOUR:   Well, looking at the material, the parties have been urged to agree such facts as are capable of agreement, to prepare a statement of agreed facts and a statement of facts in issue.  Why should that not be done?

MR GALLANT:   Your Honour, an attempt has been made to prepare a statement of agreed facts, but unfortunately, and I do appreciate that this sounds a strange statement, your Honour, it has not been possible to prepare that statement.

HIS HONOUR:   Well, it does sound strange in the sense that there must be some facts, even if they are most basic, which are capable of agreement.  I am concerned that unless this matter comes before the Court with a very clear understanding of what the issues are and what is common ground and what is not, that even three days might prove to be inadequate.  Why should not the parties agree such facts as can be agreed, even if in the end they are minimal; at least it alerts the Court to some extent to what the issues are.

MR GALLANT:   Your Honour, the position that was taken in relation to that before her Honour Justice Gaudron after many discussions was that that had not proved possible, but her Honour made orders for the matter to proceed by way of pleadings and the pleadings themselves, in so far as the parties are concerned, are set out by a process of traversal and denial and admissions, the facts that are common to both parties and agreed to the parties.

HIS HONOUR:   Well, perhaps.  You are talking about the points of claim, points of defence and points of reply?

MR GALLANT:   Yes, your Honour.

HIS HONOUR:   Well, that depends on the precision of the pleadings, and if in fact the points of defence simply put in issue a whole range of facts, that leaves the Court in a very uncertain position as to whether facts are seriously contested, whether formal proof is required only in some cases.  As you have put the matter to me now, Mr Gallant, this will come on for hearing with no greater precision than the points of claim, points of defence and points of reply.

MR GALLANT:   The position as I think the parties apprehend it, your Honour, is that the pleadings are rather detailed and do, in the parties’ views, at least certainly from our perspective, set out the detailed nature of the claim ‑ ‑ ‑

HIS HONOUR:   Well let us have a look at, say, the points of defence filed on 3 August, 1994.  Well there are a number of broad denials of matters raised in the points above, is the proposition that one can deduce from the points of claim, points of defence and points of reply, what the issues are?

MR GALLANT:   Yes, your Honour, together, of course, with the affidavits that have thus far been drafted in the pleadings.  Your Honour, my learned friend has made a suggestion that ‑ ‑ ‑

MS FITZHENRY:   If it would assist the Court, your Honour, I would be prepared to extract the admissions that are made in the points of defence, such that the facts which are admitted are clear.

HIS HONOUR:   Well I think that should be done, Ms Fitzhenry.  Why should parties not put in written outlines of argument?

MR GALLANT:   Only to this extent, your Honour, that there are matters of fact that the Court will, it is submitted, need to make a decision on.

HIS HONOUR:   Well, no doubt, but ‑ ‑ ‑

MR GALLANT:   And depending on the outcome of those questions of fact, the submissions of the parties would ultimately rest on those evidentiary matters, your Honour, and therefore Ms Fitzhenry and I have discussed the matter and it has been suggested that until one hears the evidence and the cross-examination, we presumed it might be somewhat premature to put in outlines of submissions.  Rather we thought, your Honour, that it may be more appropriate after oral submissions to then submit to the Court written submissions based on the evidence given in the proceedings.

HIS HONOUR:   You mean in lieu of closing addresses?

MR GALLANT:   We, I think, thought additional to, your Honour.  To a certain extent we would, of course, be entirely in the Court’s hands as to ‑ ‑ ‑

HIS HONOUR:   Indeed, you are.

MR GALLANT:   Not to a certain extent, your Honour; entirely we would of course be in the Court’s hands as to how the Court thought the matter ought properly proceed.

HIS HONOUR:   I do not see why - and I accept Ms Fitzhenry’s offer to extract from the, what I will call the pleadings, the agreed facts.  I do not see, nevertheless, why your client, as the party moving in this matter, should not file some outline.  I appreciate that to some extent it is caught up with questions of fact, but there will be a case put forward by your client, as there will be a case put forward by Ms Fitzhenry’s client.  I am not suggesting it should be a lengthy document, but it should be something that draws attention to the facts and the authorities, and the sort of thing, admittedly I am speaking to a large extent in the context of appeals, but I do not see why that should not be done.

MR GALLANT:   Most certainly, your Honour.

HIS HONOUR:   All right, now what about the doing of it?  I could leave both parties to do it within a certain time, but it seems to me it would be more sensible to call upon your client to file something first and then get a response from Hospital Products.

MR GALLANT:   Would your Honour be prepared to allow seven days for that to be filed in Perth?

HIS HONOUR:   Well, that takes us until the end of next week.  With the case due to start on the Wednesday, it does not leave much time for the respondent to the application and it leaves very little time for the Court, but if Ms Fitzhenry has no objection to that, that would then be on the basis that Hospital Products’ answer would have to be filed, well obviously by the latest by Tuesday.

MR GALLANT:   Yes, your Honour.  The only reason I ask for that time, and bearing in mind the shortness of time it does leave my friend, is that this matter has been traversed at length between the parties and it would not be unfair of me to say that both parties do appreciate each other’s stance in the matter, so I do not think that our outline will contain anything that would in any way surprise our opponents.

HIS HONOUR:   Well I could say, in that event, you would hardly need a week to do it.

MR GALLANT:   Yes, most certainly, your Honour, only this that I would certainly be seeking counsel’s assistance in finalising those outlines and ‑ ‑ ‑

HIS HONOUR:   I think it ought to be done by next Thursday, and Hospital Products’ answer by the following Monday.  Is that putting you under some pressure, Ms Fitzhenry?

MS FITZHENRY:   It does, your Honour, but we will endeavour to do it at least by the Monday evening, if it ‑ ‑ ‑

HIS HONOUR:   Otherwise these things just have a habit of drifting along and you start the proceedings with either nothing or something that comes in very late in the day.  Well, I will direct then that United States Surgical Corporation file and serve on the solicitors for Hospital Products Limited by next Thursday, 18 May 1995, an outline of argument and that Hospital Products file and serve an answer thereto by the following Monday, the 22 May.

MS FITZHENRY:   Your Honour, I could not stretch that until noon on the Tuesday, could I?

HIS HONOUR:   It is a bit like horse trading, Ms Fitzhenry; all right.

MS FITZHENRY:   Thank you, your Honour.

HIS HONOUR:   Now, what about documents; are any documents going to be tendered?

MR GALLANT:   The body of the essential documents, your Honour, are annexed to the affidavits that have been filed in the proceedings.

HIS HONOUR:   Well, is there going to be any argument about the proof of documents?

MR GALLANT:   I do not believe so, your Honour.

MS FITZHENRY:   No, your Honour, I do not.

HIS HONOUR:   Well I would like to be clear about that, because if it becomes caught up in questions of admissibility of documents and the like, then again three days might be inadequate.

MR GALLANT:   Your Honour, there will be no dispute as to the documents that have been lodged on the affidavits.

HIS HONOUR:   Are there many documents?  I mean, I appreciate there are a number of documents annexed to a variety of affidavits, but I was going to ask you, is there any reason why the parties could not prepare a book of agreed documents?

MR GALLANT:   No, your Honour.

MS FITZHENRY:   Your Honour, perhaps I should qualify that.  I do not believe there is any argument about the documents themselves and strict proof of those documents; there may be arguments about the relevance of some of the documents to the issues, but that can be dealt with by way of submissions rather, I mean, it will not be a matter of having to call ‑ ‑ ‑

HIS HONOUR:   Yes, no doubt, but to the extent that there are documents, the existence and relevance of which are agreed by the parties, although obviously questions go to the weight and the like, it seems to me that they ought to be incorporated in some separate form and made available to the Court at the commencement of the heading, and I will so direct.

MR GALLANT:   Most certainly, your Honour.  United States Surgical Corporation will prepare an agreed bundle of documents.  It may be appropriate, your Honour, in those circumstances, for you to direct that that bundle to be prepared by us be served on Hospital Products’ solicitors maybe ‑ ‑ ‑

HIS HONOUR:   Well I am really contemplating it would be done by both parties and made available to the Court when the matter begins on 26 May.  I mean, you, as the moving force, no doubt will accept the primary responsibility for it, but it is an agreed collection of documents that I am referring to so it is a matter between the parties.  I mean, I am not considering that you serve documents and then you get a response - time does not permit that sort of thing.

MR GALLANT:   Yes, your Honour.

HIS HONOUR:   Can I assume that this matter will go on on 26 May, in the sense, is anything likely to happen to prevent it?

MR GALLANT:   Your Honour, it would not be safe in assuming it will definitely go on.

HIS HONOUR:   Well, if anything arises that is likely to affect that, I would welcome early notice from the parties through the Registry.

MR GALLANT:   Yes, your Honour, if anything does happen, the parties will undertake to notify the Court immediately.  I cannot put the matter any higher than that at the moment, unfortunately, your Honour.

HIS HONOUR:   All right.  Is there anything else that you wish to raise with me, Mr Gallant, or you, Ms Fitzhenry.

MR GALLANT:   No, your Honour.

MS FITZHENRY:   No, your Honour.

HIS HONOUR:   Thank you for that.  We will adjourn.

AT 9.21 AM THE MATTER WAS ADJOURNED