Mobil Oil Australia Pty Ltd v Trendlen Pty Ltd

[2005] HCATrans 680

[2005] HCATrans 680

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S380 of 2005

B e t w e e n -

MOBIL OIL AUSTRALIA PTY LIMITED

Applicant

and

TRENDLEN PTY LIMITED

Respondent

Summons

McHUGH ACJ

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 6 SEPTEMBER 2005, AT 10.01 AM

Copyright in the High Court of Australia

MR J.T. GLEESON, SC:   May it please the Court, I appear for the applicant.  (instructed by Blake Dawson Waldron)

MR M.J. LEEMING:   May it please the Court, I appear for the respondent.  (instructed by Robert Richards & Associates)

HIS HONOUR:   Yes.  What is the attitude of the respondent, Mr Leeming, in this application?

MR LEEMING:   We have communicated to the plaintiff that we neither oppose nor consent to the application and the only things that would seem of particular relevance to its success are accepting, as we do, that in large measure this stands or turns on the same issues that are to be determined in the Fostif application which is set down on 30 September.

HIS HONOUR:   It does have two or three different issues.

MR LEEMING:   Yes.  Then that is the factual issues about Mr Firmstone’s conduct and the constitutional issue is another that has come out of Chapter III or the meaning of “matter”.  We would respectfully suggest that perhaps the critical question is the extent to which those two additional issues warrant an expedited determination of the application because the other issue ‑ ‑ ‑

HIS HONOUR:   The point is that the Campbell’s matter is in the special leave list for 30 September.  I think there are four vacancies in the list so in those circumstances it seems appropriate to make an order expediting the matter and depending on the way the Court wants to approach it they can hear both matters together or hear them on the same day.  Have you any problem with that?

MR GLEESON: No, your Honour. If that order is to be made the parties are then agreed that the timetable would be that the respondent’s submissions would be filed by 19 September and our submissions in reply by 26 September, if that is convenient. We had issued section 78B notices, at first instance, and we will inform the various Attorneys-General of the fixture on 30 September.

HIS HONOUR:   Yes.  So you will be relying on your special leave application for your primary argument?

MR GLEESON:   Yes, and our submissions in‑chief were filed on 1 September.  That is the primary argument.

HIS HONOUR:   Yes.  Your draft notice of appeal was filed on the same day.  I assume it is in order?

MR GLEESON:   Yes, it is in order, your Honour.

HIS HONOUR:   There is nothing required in respect of that?

MR GLEESON:   No.

HIS HONOUR:   Costs should be costs of the special leave application?

MR GLEESON:   If your Honour pleases.

HIS HONOUR:   In this matter there is an application for an order that the hearing of the application for special leave to appeal be heard together with the hearing for special leave to appeal from the decision of the New South Wales Court of Appeal in what can be described as Fostif v Campbell’s Cash & Carry Pty Limited [2005] NSWCA 83 and which is due for hearing in the special leave list on 30 September.

There is a very large identity of issues between the two cases although the present application by Mobil brings into issue certain constitutional matters arising under Chapter III of the Constitution. Nevertheless, it seems plain enough that both cases should be heard together. There is a vacancy in the list on 30 September so making an order for expedition will not require the displacement of any case pending in the special leave list.

It is true that the decision against which Mobil Oil is appealing is the decision of a primary judge in the Supreme Court of New South Wales.  But that does not seem to me to be a reason why the Court should not grant special leave if it is so desired.  The reason why the applicant has come directly to this Court is that the trial judge followed an earlier decision of the Court of Appeal, a decision which was subsequently cited with approval by the Court of Appeal in a later case Project 28 Pty Ltd v Barr [2005] NSWCA 240. In addition, this Court in the past has granted special leave in circumstances where the application is direct from a primary judge. A recent illustration of that is the case of Wilkie v Gordian Runoff Ltd. 

Accordingly, for the reasons I have given, there seems no reason to reject this application for an expedited hearing.  I order that the present matter – Mobil Oil Australia Pty Limited v Trendlen Pty Limited – be listed for hearing in the list on 30 September 2005.  The applicant’s summary of argument together with a draft notice of appeal was filed on 1 September.  I direct the respondent to file its written submissions on or before 4.00 pm on 19 September and the applicant to file any submissions in reply by 4.00 pm on 26 September.  The costs of today’s hearings will be costs in the special leave application and the ‑ Mr Gleeson have you served 78B notices?

MR GLEESON:   They were served at first instance so what we will do is simply update the Attorneys-General.

HIS HONOUR:   And I direct the applicant to serve notices under section 78B of the Judiciary Act 1903 (Cth) within the next seven days.

MR GLEESON:   May it please the Court.

HIS HONOUR:   Anything further?

MR GLEESON:   No, your Honour.

HIS HONOUR:   Very well.

AT 10.09 AM THE MATTER WAS CONCLUDED