Smith Kline & French Laboratories (Australia) Limited & Ors v Commonwealth of Australia

[1991] HCATrans 223

...

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•	-.~~

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S95 of 1991

B e t w e e n -

SMITH KLINE & FRENCH
LABORATORIES (AUSTRALIA)
LIMITED; SMITH KLINE & FRENCH
LABORATORIES LIMITED;
SMITHKLINE BEECHAM CORPORATION;
LABORATOIRE SMITH KLINE &
FRENCH SA and SMITH KLINE

DAUELSBERG GMBH

Applicants

and

THE COMMONWEALTH OF AUSTRALIA,
THE SECRETARY TO THE DEPARTMENT

OF COMMUNITY SERVICES AND

HEALTH

First and Second Respondents

and

ALPHAPHARM PTY LIMITED

Third Respondent

Application for interlocutory

relief

Smith Kline 12 13/8/91

BRENNAN J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 13 AUGUST 1991, AT 10.17 AM

(Continued from 9/8/91)

Copyright in the High Court of Australia

MR R.J. ELLICOTT, QC:  Your Honour, I appear for the

plaintiffs, and the applicants in the motion, with

my learned friends, MR J.C. CAMPBELL, QC and

MR M.R.J. ELLICOTT. (instructed by Minter Ellison)

MR G. GRIFFITH, QC, Solicitor-General for the Commonwealth:

If Your Honour pleases, I appear with

MR D.K. CATTERNS and MS S.C. KENNY for the first

and second-named defendants in the action and

similar respondents. (instructed by the Australian

Government Solicitor)

MR J.J. GARNSEY, QC: If Your Honour pleases, I appear with

my learned friend, MR P.J. DUNSTAN, for the third

defendant and the third respondent. (instructed by

Mallesons Stephen Jaques)

HIS HONOUR:  Mr Ellicott?

MR ELLICOTT:  Your Honour, there is a summons in the matter dated 8 August which Your Honour will have. The

statement of claim is dated 7 August. I am

instructed that notices under section 78B have been

sent. There are two affidavits in support, one of

Frederick John Amor of 8 August 1991 and the other

of Alan Lawrence Limbury of 8 August 1991 which I

tender, Your Honour.

The affidavit of Frederick John Amor has

annexed to it in paragraph 20 a confidential
exhibit FJAl and I would ask Your Honour to make a

confidential order in relation to that.

HIS HONOUR:  Let us see if I can find my way through this

mass of paper to start with.

MR ELLICOTT: If Your Honour pleases.

HIS HONOUR: Perhaps I should hear what the other parties

have to say about the application in relation to

confidentiality of the exhibit.

MR ELLICOTT: Yes, Your Honour.
HIS HONOUR:	Mr Solicitor?

MR GRIFFITH:  We have no problems, Your Honour. We would

not show it to anyone any way.

HIS HONOUR:	Mr Garnsey?
MR GARNSEY:	We have no objection, if Your Honour pleases.
HIS HONOUR:	Yes.  What is the form of the order that you

ask and under what power -

Smith Kline 13 13/8/91

MR ELLICOTT:  Your Honour, that the exhibit and the

information it contains be treated as confidential;

that inspection of it be confined to counsel and

solicitors for the parties and that it be placed in

an envelope in the file of the Court and sealed and

marked "Confidential". I think that is the form of

order that is often used in other courts,

Your Honour, but you may have a difference practice

here.

HIS HONOUR:  And there is jurisdiction to make an order of

that kind?

MR ELLICOTT: In the original jurisdiction of the Court,

yes, Your Honour. If it is sealed up, of course,

and not to be opened except subject to the

direction of the Court.

HIS HONOUR:  Yes. Well, I will make the order in the form

that you seek reserving liberty to any party to

apply.

MR ELLICOTT: If Your Honour pleases.

HIS HONOUR:  And by "any party", I mean any interested

person as distinct from the parties to the

litigation.

MR ELLICOTT: If Your Honour pleases.

MR GRIFFITH:  Your Honour, perhaps I could indicate, now

Your Honour has made the order, that the

information itself has already been disclosed to

the second respondent in connection with the other

proceedings, Your Honour, and in any event, it is

information which is known to the second respondent

and the Departments. But none the less,

Your Honour, the order that Your Honour makes does

have some content in respect to this particular

document.

HIS HONOUR: Yes. Well, that is understood, I take it,

Mr Ellicott, in any event?

MR ELLICOTT: Yes, Your Honour. In fact, a paragraph of the

affidavit indicates that. My friend, I take it, is referring to the patent extension proceedings which

are current before the Supreme Court of New South

Wales in its Equity Division and the letters patent

for cimetidine expired on a date in August 1988 and

the application for extension is currently in the

list.	When I say "in the list", it has not been
set down for hearing.	The evidence is still being
amassed.	The importance of that, of course, is

that subject to any such order as a Celotex order,

that the question of Alphapharm suffering any

damage due to any delay in these proceedings is, to

Smith Kline 14 13/8/91

some extent, measured by the fact that my clients

have the right to have heard the application for
extension and there has been an extension in other

places.

HIS HONOUR:  Yes.

MR ELLICOTT: That information has been confined to the same

people, that is, counsel and parties, in the equity
proceedings as well.

Now, Your Honour, the affidavit of Mr Amor is directed to the balance of convenience and the

affidavit of Mr Limbury is simply to chart the

course of the proceedings in the Federal Court

since 1987 and the paragraphs of Mr Limbury's

affidavit indicate the various dates upon which

orders were made which restrained the use of the

information.

Now, as Your Honour would have gathered last

week from a document that was handed up to

Your Honour - the last paragraph, the departmental

officer says:

I have spoken to the External Evaluator who

stated that he had almost completed the

evaluation of the Alphapharm Bl data and will

shortly be in a position to provide his

written report to the Department. The

External Evaluator also stated that he

previously evaluated Smith Kline and French Bl

data in respect of marketing applications for

cimetidine and, that in evaluating the

Alphapharm Bl data, he probably used his

accumulated knowledge from his evaluation of

the Smith Kline and French Bl data. No direct

reference was made to the Smith Kline and

French Bl data. Accordingly, the Smith Kline

and French Bl data has already been used by

both the Department in accepting the

Alphapharm marketing applications and by the

External Evaluator.

HIS HONOUR:  Do I take it that by consent of all parties I

should take this "Statement from the Department of

Health, Housing and Community Services" as the fact?

MR ELLICOTT:  As the position as at 8 August, yes,

Your Honour.

HIS HONOUR: Yes. Is that so, Mr Solicitor?

MR GRIFFITH:  I understand that is the position,

Your Honour.

Smith Kline 15 13/8/91

HIS HONOUR:	Mr Garnsey?
MR GARNSEY:	I have no objection to Your Honour so treating

it. We have no knowledge ourselves of the

correctness of what is in it, Your Honour.

MR GRIFFITH: Perhaps I could add, Your Honour, for

Your Honour's information, that we would expect the

external examiner to present his report in the ordinary course at about the end of the month.

HIS HONOUR:	Yes.
MR ELLICOTT:	Now, Your Honour, what we sought on Friday

and, in a sense - I say, "in a sense'' because we

were prepared to accept Mr Hely's statement - what
we are seeking is that no further steps be taken in

relation to the Alphapharm application pending the

hearing of the action - that is the action raising
the constitutional issue - and should we be

successful in that action, pending the hearing of

any appeal.

HIS HONOUR:  That is a wider relief than you were seeking in

your application before the Chief Justice for an

interim injunction which is echoed, I think, in the

terms of your present summons.

MR ELLICOTT: In a sense, it is, Your Honour, it is

different but it has the same effect. It is trying

to pick up the matter at this stage knowing that since His Honour the Chief Justice delivered his

judgment on 26 April, that certain things have been

done as outlined in this statement from the

Department. Now, what has happened is that the

information has been used internally, if I can use

that expression. We do not know what, if any,

effect that has had on the application of

Alphapharm. For instance, we do not know whether

there has been any communication with Alphapharm.

Can I just explain this, Your Honour, that

what is of deep concern to our client - and I put

aside here for the moment the question of where the
obligation of confidence that it seeks to establish

ends or begins - is that the information that it

has gone to immense expense to put together and

which makes up the Bl data should not be used to

the commercial advantage of a competitor. As

explained in the affidavit of Mr Amor that may

happen in a number of ways. The use of it can

cause, in a way that is offensive to our client, as

it puts the matter, it could cause that application

to be granted sooner rather than later because the

information is taken as supplying a gap that would

otherwise exist in the Alphapharm application.

Smith Kline 16 13/8/91

On the other hand, it might lessen the cost

incurred by the competitor in relation to the

product and, indeed, it may be used to produce a
better product because somebody in the Department

says, "Well, the impurities ought to be reduced to
this figure" or "that figure" or some other

statement is made making use of the information

with the result that it is used to the commercial

disadvantage.

Now, it may be - and I am seeking not to get

into the debate at the moment - and I do not make a

concession in relation to it - that the Department,

on one view of the matter might use information in
the public interest, that is to say, to deal with

the safety or efficacy of the product, and the

regulations talk about safety and efficacy. But

such use - there is a line between such use simply

to preserve the public benefit and use which is
thought to be so directed but which, at the same

time, assists a competitor.

Now, under the regulations there is a complete

ban on the importation of this product that and the public interest is protected by that

particular provision. It has to get through the

gateway, the gateway of those Customs (Prohibited

Imports) Regulations and, in particular,

regulation 5E.

HIS HONOUR: Is 5E the relevant regulation which presently

governs the processing of the Alphapharm

application?

MR ELLICOTT: It is. For the purposes of these proceedings,

yes, Your Honour.

Now, Your Honour, what we are seeking in the injunction is that, whereas before the information

had not been used and we were seeking an injunction

restraining them without our prior written consent

from using or applying the information, now that it

has been user applied we want to stop any further

use or application of it without our consent
pending the determination of the constitutional

issue and, if it be found in our favour, pending

the hearing of any appeal from the Federal Court.

Now, that is not, in any sense, wider; it is

simply trying to find a way of realistically

dealing with the question because until the Court

knew more about the matter or until we know what is

going on in the Department, we do not know whether

a particular use of the information falls into the

category of use that benefits the competitor or use

that is simply in the public interest but has no

Smith Kline 17 13/8/91

benefit to the competitor at all, and that is a

fine line in the proceedings.

HIS HONOUR:  I can understand the concern that you express

in relation to Smith Kline's position and the

desire which Smith Kline would have to maintain the

advantage which its research has given it and to

retain that commercially. The difficulty that I

have is that you went to the Federal Court on the

footing of restraining the use of information in order, of course, to prevent all the steps being

taken which might follow from the use of that

information. You stopped it, as it were,

ab initio, if you could, therefore nothing further

happened. But that was as far as you sought relief

and in the events that have happened you have

practically failed. I do not mean failed in the

litigation but failed to stop the use of that
information. If then you now wish to focus upon

the subsequent steps in the procedure, as one can

readily understand, how does that area of concern

attract the jurisdiction of this Court incidentally

to whatever appellate or original jurisdiction it

may have?

MR ELLICOTT:  Your Honour, it is abundantly clear that

His Honour the Chief Justice made his decision

based on there being an application for special

leave and his view about the matter, and I assume

Your Honour has read His Honour's judgment?

HIS HONOUR:	Yes.
MR ELLICOTT:	Now that there is before the Court an attack

on the special leav·e provisions and there is a

claimed right of appeal, considerations that attend
an application for the grant of special leave,
obviously, will not affect the hearing of the

matter if there is a right of appeal, so that to

that extent the considerations which moved

His Honour are quite disparate and different to

those which should now concern Your Honour.

Your Honour's concern, we would submit, is

properly to protect our client, if it satisfies

Your Honour, from the wrongful use of the information for the purposes of the Alphapharm

application. Now, on the one hand, we would say

that any use of it for the Alphapharm application

is wrongful potentially and therefore we should be

protected from it.

Alternatively, we would say that if there is a

public interest, it is only a public interest that

enables the information to be used in the public

interest but not for the benefit of Alphapharm.

Smith Kline 18 13/8/91

HIS HONOUR:  I think I understand this, Mr Ellicott, but I

do not think, if I may say so, you are addressing

the problem that is concerning me. The problem

that is concerning me is this: if, in proceedings
at first instance, a litigant claims particular

relief and fails to obtain that relief and comes to

this Court on appeal, as of right if one wishes,

and then seeks not to obtain that relief but to

obtain a broader relief on interlocutory

proceedings before this Court, it does not seem to

me that there is any manifest jurisdiction in this

Court to grant that extended relief.

MR ELLICOTT:  Your Honour, I was seeking to answer

Your Honour's question but perhaps taking a little

more time than I need to but what I said was

directed to answering that.	I do not submit that
we are entitled to any wider form of relief.	It is

a question of framing an order that will protect

the situation in the meantime and that is why I

referred to the position under a right of appeal.

Now, how does one protect it? One order that could

be made is simply in the terms that we seek in the

summons but that was framed in the context of not

knowing what is contained in the document of

8 August.	So that we now know that the information
has been used.	It may have been used in a way that

would be offensive to our right and therefore the

question arises, "What do we do about it?" and,

"What should the Court do about it if it agrees

with us?". One way of doing something about it is

to prevent, pending the hearing of this action and
the hearing of any appeal consequent on it, any

further steps because there is an obvious

difficulty in severing out information, the use of

the information and the way in which it may have

affected the Alphapharm application. We do not

have access to that and therefore the Court, we

would submit - and we are not outside our charter

here - should make an order that is appropriate to
hold the position in the meantime.

Now, one way would be simply to restrain the

use of the evaluator's report in so far as it

relies upon information from the Bl data. That
would be consistent with what we have sought. That

is an awkward order because it requires - it may be

a proper order in one sense but it is awkward in

the sense that it leaves open a debate as to where

is the dividing line between "use" and "non-use".

So far as the future is concerned, then if the

Department is asserting a right to use, and goes

ahead and uses, and processes the application both

by using information that has already been used,
but also feels free to use it again in its

consideration of the evaluator's report, then

Smith Kline 19 13/8/91

obviously there is again a difficult situation.	In
other words, previously we had undertakings not to

use it and it was not used and the practical effect

of that was that the Alphapharm application was

held up. So all we are seeking now is to hold up

the Alphapharm application pending the
determination of these proceedings because that is

the practical effect of our previous order.

On the other hand, if Your Honour found

difficulty in that, we would accept an order that

restrained them from using the information or

making any use of the evaluator's report in so far

as it used the information. But I must say it did

seem to us that that may be an awkward order to

enforce if there was a breach, and it would be

better to hold the position, as Mr Hely agreed on says nothing is going to happen for a couple of

months and the position will be held, therefore from a practical point of view the Crown should

have no difficulty in undertaking not to process

this application, not to take any further steps in

relation to that, and that would remove any

awkwardness in an interlocutory injunction or

undertaking that fixed on the use of information as

such and left an awkward question of fact, should

there be any breach, and in the situation, really,

where we have no way of policing it.

So, Your Honour, we are generally not trying to make it any wider, purely seeking to pick up the

undertaking that was given on Friday and seeking to extend it, because it did seem a sensible practical

way of handling the matter. And if the Department

is not going to process this application until a

couple of months ahead because of the procedural

aspects that occur, then there is no harm in giving

such an undertaking.

Your Honour, that couple of months may or may

not be sufficient, but again Your Honour may, in

the exercise of Your Honour's discretion, think it

is better to do this one bit at a time. I can

understand that. In other words, that Your Honour

would hold the position for a period so that the
constitutional issue could be determined and then
have another look at the matter in the light of any

decision that we did have a right of appeal. That

is one approach to the problem.

My understanding, Your Honour, is that we were

facing a situation where the Court might want an

early hearing of the main proceeding. Now, if the

practical situation is that, and I say this, if I

may, without prejudice to the application that I am

making on the summons, if that is so, then from a

Smith Kline 20 13/8/91

practical point of view it may well be better that

the Court, on an undertaking from the

Commonwealth - and we would accept a statement from

the Commonwealth, that has always been the

practice; I think we still have to trust the Crown,

Your Honour - if they make a statement, we would

accept that and that could be for some months, so

that in the meantime, if the Court is minded to
deal with this matter more quickly than perhaps an

ordinary action would be dealt with, then that

constitutional issue can be argued and the Court

can even give judgment or not, as the case may be.

Now, I do not know - - -

HIS HONOUR:  So that you can frame your submissions then so

that Mr Garnsey, in particular, can frame his

submissions with some appreciation of the time

frame, it might be as well if we were to see what

we could do to resolve that now.

MR ELLICOTT:  Yes.

HIS HONOUR: There are, as I understand it, two pieces of

litigation which raise this question: the first is

the Smith Kline litigation, the second is

litigation in which I understand the parties are

Mr Carson and John Fairfax & Sons Limited. Is

there any other piece, apart from those two that

you know of?

MR ELLICOTT:	Not that I am aware of, Your Honour.
HIS HONOUR:	What stage has been reached with respect to the

78B notices in the Smith Kline litigation?

MR ELLICOTT:  They have gone out. We are getting responses.

We have had two so far.

HIS HONOUR: Perhaps I should ask the Solicitor-General.

Would you expect that by your good offices the

responses could be hastened in relation to the

Smith Kline litigation?

MR GRIFFITH:  Your Honour, there is no problem about the

Commonwealth, of course. So far as the States are

concerned, if there were to be a hearing, say, at

the end of the month, one would expect that the

States would be able to co-operate.	I cannot bind
them, but there is a capacity -

HIS HONOUR: There is a possibility of a hearing date on

29 August.

MR GRIFFITH:  Your Honour, it is a point of public

importance. One would expect the States would

pitch in as well.

Smith Kline	21	13/8/91
HIS HONOUR:	Yes.	It is a matter in which, obviously, it is

important from the point of view of the Court's own process that this constitutional question should be determined. Perhaps I could ask in relation to the Carson matter, although I understand they are not

represented here, but Mr Ellicott seemed to have

some knowledge of that the other day.

MR ELLICOTT:  I am not sure whether those notices have gone

out yet, but I think Mr Lirnbury and I can make sure

that they go out.

HIS HONOUR:  And with encouragement that they be responded

to.

MR ELLICOTT: Yes, Your Honour.

HIS HONOUR:	But I should think that the States would have an accelerated interest in the Carson litigation as
against this one.

MR ELLICOTT: Yes.

HIS HONOUR: Well, you will do what you can, you and

Mr Limbury, in relation to that matter as well.

MR ELLICOTT: Yes, Your Honour.

HIS HONOUR:  Now, the only other question, I suppose, is the

form in which the proceedings in the Smith Kline

litigation, for that is all we can deal with at the

moment, should take. The statement of claim raises

the questions clearly enough. Is it intended by

the Crown to demur in this matter, Mr Solicitor?

MR GRIFFITH:	Your Honour, we wish to be helpful for the point to be set down but we were minded to take out
a summons to strike out the statement of claim.
Perhaps I could enlarge on the objections we raise,
Your Honour, but our basic point is that these issues should be brought up in the first
proceedings and that it is inappropriate to the
point of not being an available mechanism for
testing the claim to appeal as of right in one
proceeding, to issue separate proceedings, not
limited of course, Your Honour, to the particular issue of whether there is a right of appeal, notwithstanding the Federal Court Act section 33
requirement for special leave, but also in this
case, Your Honour, claiming, we say, without it
being an issue that the plaintiff can litigate,
invalidity of the Judiciary Act provisions.
HIS HONOUR:	I can understand that the procedural mechanism

might be open to challenge, but it would be

undesirable if a question of constitutional

Smith Kline 13/8/91

importance went of, as it were, on a mere matter of

procedure.

MR GRIFFITH: Entirely, Your Honour. I suggested to my

learned friend this morning, and he has not yet

responded to me, that the simplest way we would

propose that this issue of whether or not special

leave is required in this appeal would be for my

learned friend to file a notice of appeal in the

action, in the first action, and we would then

object to its competency and that would directly

raise the issue, we would submit, in an appropriate

way for my learned friend to make his point, which

is that section 33 is beyond power having regard to

section 73 of the Constitution. I have indicated

to him, Your Honour, that if he were minded to file

a notice of appeal, we would object to its

competency at once, and be content for that to be

set down to be heard.

HIS HONOUR:  I would not wish to take the conduct of the

litigation out of the hands of the parties, but if
they cannot agree on an appropriate procedure to be
adopted, then I would have in mind directing that
the question of constitutional validity be argued

before a Full Court.

MR GRIFFITH: Yes, Your Honour. We are quite happy for that

course to be taken if my learned friend and I

cannot agree. We would hope we would agree, but

our submission still would be that that point

should be set down in the first action and not in

the second action.

HIS HONOUR:  I would have no jurisdiction at the

moment -

MR GRIFFITH: But the present application for special leave,

Your Honour, that is where this point arises and it

is confirmed, Your Honour, by my learned friend's

prayer for relief which is to get orders in respect

of the appeal in that matter.

HIS HONOUR:  Yes.

MR GRIFFITH: But, Your Honour, at the end of the day, as

long as the point is set down we are happy to meet

it and we do not wish to be obstructive, but it

does seem to us that it is not appropriate for my

learned friend to have the separate proceedings on

foot attacking whatever provisions requiring

special leave in various circumstances he desires.

His point, Your Honour, is that far from requiring

special leave, as has been sought in the current

application, he is entitled to proceed as of right.

Now, it was common enough before the amendments, in a case like Mann v Australian Capital Territory

Smith Kline 23 13/8/91

Health Commission, for a notice of appeal to be
lodged, protective application for special leave,

objection to competency taken and the point put

straight in for hearing.

HIS HONOUR: Perhaps I can leave the procedure to one side

for the moment and I will hear what Mr Garnsey has

to say about the time scale of the proceedings at

all events.

MR GARNSEY:	No, Your Honour, we would to embrace an early resolution, and do anything necessary to enable it
to be resolved, if Your Honour pleases.
HIS HONOUR:	Yes.
MR GARNSEY:	They are my instructions.
HIS HONOUR:	And I take it then for that purpose you would

co-operate in whatever moves are necessary to

ensure that the 78B notices are responded to?

MR GARNSEY:  Yes, Your Honour. I should say if my learned

friend, Mr Ellicott, is minded to file a notice of appeal, we also would object to its competency but

we would not object on any formal grounds such as

the notice being theoretically out of time, if he

be right. So, we would co-operate to raise the

substantive question and have it determined as soon

as possible, if Your Honour pleases.

HIS HONOUR:  Yes. Thank you, Mr Garnsey. Well,

Mr Ellicott, I think, perhaps, I shall leave it to

you and the other parties to resolve, on the first

available adjournment, what the procedure might be

but we can take it that there is a substantial prospect of having the constitutional question

resolved by a hearing on 29 August, assuming that

the Carson matter can be prepared for the same

time, and there would seem to be no reason why it

cannot; that the urgency of the matter is such that

should be resolved as quickly as possible and	from the Court's point of view, of course, it
whatever vehicle is available to resolve it will be
adopted for that purpose.

MR ELLICOTT: 

Your Honour, could I just say this: it relates

to the procedure but it relates to the hearing of
the matter, and all the questions may as well be

dealt with at the one time, I should have
submitted.

There is not only the question of validity of

subsection (3) of each of those sections on the
question of whether they constitute a valid
exception or regulation, but there is also a
question as to whether the power that is conferred

Smith Kline 24 13/8/91

by each of those sections, if the first question be

answered not invalid on that ground, that if the

first question be answered against us, then there

is still the question as to the nature of the power

that is vested in the Court.	Now, that is a
relevant matter.

It is also relevant to something that my

friend, the learned Solicitor, has just said.	He
says, "Well, it only arises in the special leave

proceedings" but, Your Honour, it is quite clear

that they are not proceedings of the Court. They

are not inter partes. That is the reason why we

started proceedings; why there is an action before
the Court, so that we can challenge what is

happening because what is happening is merely, by saying grace and favour, it is more coming to the

Court.	You cannot appear except by counsel,
et cetera.	Your Honour would know the authorities

that discuss the nature of an application for

special leave.

Well, we, for our part, as an alternative,

would want to attack that and so we take out a

statement of claim that raises those issues. There
is also a question as to whether "the High Court"

in there means the seven Justices or whether it

means the High Court as it would constitute itself

Judiciary Act, judicial power of the Commonwealth.

if it were acting under the and the exercise of the

Now, if section 35(3) or section 33(3) is not

vesting judicial power and is purely a statutory am not wanting to be difficult about what my friend suggests, but I am not sure an objection to competency is the way to raise all the questions.
discretion, then does "the High Court" mean the
seven Justices or two or three? Can the Judiciary

We are quite happy, if I may say so, to put on

an amended statement of claim that got rid of our
claim in relation to the Judiciary Act. If we

sought to pursue that and there had been no other

action such as Carson, we may have faced a locus

issue but we do not face it, in a sense, now,

because the issue is going to go to the Court

through the Carson proceedings as to section 35 of

the Judiciary Act. It is not needed to be raised

in the Smith Kline & French proceedings. So that

we are quite happy to put on an amended statement point of view, that all the relevant issues that
of claim but it may well be that in the long run it
is better to make sure, if I may say so, from the

could affect the exercise of the special leave

Smith Kline 25 13/8/91

jurisdiction be dealt with at once. So,

Your Honour, if the Court feels this is a hiccup in its path, then it should deal with all the matters

that could cause a problem, hopefully, we would

say, by declaring the section invalid, Your Honour,

but that is another matter.

HIS HONOUR:  In relation to the nature of the jurisdiction

vested in the Court, either as a court or as an

institution by the challenged sections, it is not

your present intention to amend the statement of

claim?

MR ELLICOTT:  No, it raises that, but it may need some

formulation of a question to raise the question of

what "the High Court" means. That questions is

not - I do not think that is raised in the

statement of claim at the moment but, again, that

can be raised and my friend could demur to it on

that basis without it being an embarrassment, one

would have thought. If he took out a strike-out

application, then the questions would simply be

raised again and that might be referred into the

Full Court.

Your Honour can rest assured that we will

co-operate to get an appropriate procedure and if

we cannot agree, well, Your Honour's idea of

stating questions to the Full Court - - -

HIS HONOUR: Well, it might be a matter of piling Filion on

Ossa but it may be desirable that all procedures should be availed of so that no party is deprived

of any advantage which that party might think

itself entitled to.

MR ELLICOTT:  Yes. And we do not mind putting on a notice

of appeal as long as any question, if it should be

relevant - it may not be relevant - - -

HIS HONOUR: Well, perhaps, at the end of the day, I might

seek counsels' assistance for the purpose of

framing the questions which the Full Court should

determine by whatever procedure is then agreed.

Now, you can proceed with your argument and the

understanding that by some means or other these

issues will be addressed on a hearing on 29 August.

MR ELLICOTT:  Your Honour, there does not, I would submit

with respect, seem to be any point in my spending

some hours addressing Your Honour in relation to

two matters or three matters. When I say "there

would not be any point", it does not seem
necessarily to be any point, I should say, in my
addressing Your Honour on a number of matters: one
would be, "Is there a serious issue to be argued in

relation to section 73 and the matters that I have

Smith Kline 26 13/8/91

just put to Your Honour?" That is one question.

The other question would be, "Is there a serious

issue to be dealt with if my client does have a

right of appeal?" That is to say, what are its

chances of success in an ultimate appeal as of

right?, and, thirdly, the question of balance of

convenience.

Now, I have prepared lengthy argument in

relation to that. By "lengthy" I simply mean we

had hoped to finish today, but what is going

through my mind is a practical matter and that is

if the Crown is not going to process this

application until the end of October, then there

seems to be some sense in not having that debate

that I have just described until it is necessary to

have it.

BRENNAN J:  You have trailed your coat on this on a couple

of occasions, Mr Ellicott, and I have not seen any response, as yet, from the Solicitor-General. So,

unless the Solicitor-General does respond, it might

be desirable for you to proceed.

MR ELLICOTT:  Yes, Your Honour. He is going to respond.

MR GRIFFITH:	Your Honour, I am happy to inform Your Honour what the position is as I understand my
instructions.  We expect to get the report from the
outside examiner, Your Honour, at about the end of
the month so that, as I understand it, nothing
other than that man continuing to finalize the
terms of his report will occur until then. That
seems will coincide with the matter coming on.

Your Honour, the process thereafter would be

that there would be further consideration of the

report when received and if matters were

satisfactory it would come before the next meeting

of the Australian Drug Evaluation Committee.	The
committee is hearing today, Your Honour, so,
obviously, it will not come before it today.	The
next meeting is about mid-October.

Your Honour, if there was approval obtained at that committee meeting in October, it would not be

before next year that there would be relevant

alteration to the prescribed lists and would the

drug be approved for importation and sale. So that

the reality is, Your Honour, that between now and
the end of the month there will just be continuing

the process, as I mentioned, of the report being

prepared, Your Honour, and after that it would be
another six weeks or so before the committee would

be considering the matter, at the earliest.

Smith Kline 27 13/8/91

Your Honour, if any order is made to inhibit

that process, then that will necessarily have the

effect that it will not go before the committee in

October so that there will be a delay of some

months in the completion of any process.

HIS HONOUR:  Then, in practical terms, if the present

application is stood over until somewhere towards

the middle of September, that would not, in

practical terms, affect the interests either of the

plaintiffs or of the third defendant?

MR GRIFFITH: Well, certainly, Your Honour, if the question

of interlocutory relief was stood over until after

the hearing contemplated on 29 August.

HIS HONOUR: Well, the reason why I say the middle of

September is because 29 August is a Thursday

immediately before the Adelaide sittings when it

might be difficult to entertain any application,

but there would, of course, be Friday, the 30th,

when an application could be entertained.

MR GRIFFITH: Yes. Well, Your Honour, as I understand the

position - just to assist my learned friend,

Your Honour - there certainly would not be any

occasion to communicate anything to Alphapharm

until after the report is received. So that,

Your Honour, nothing prejudicial, as my learned

friend was concerned about, will happen until then.

Your Honour, I am told that it does take some time

from the receipt of the report to be ready to go

before the committee so that, as I understand my

instructions, perhaps rather than the middle of

September, say 10 September. It would be necessary

then, Your Honour, to engage the process of further

consideration to be ready for the committee

meeting. Your Honour, that is the position as it

is but my instructions are not to offer an

undertaking but just to describe to the Court that

the position is that there is no situation of

prejudice arising.

HIS HONOUR:  Yes. In the light of that, Mr Ellicott, you

could have leave, if that statement of facts were

satisfactory to your interests, you could have this

matter stood over at your option, subject to what

Mr Garnsey has to say, to either 30 August or

12 September. Do you wish that to happen?

MR ELLICOTT:  Your Honour, the statement of fact does not

indicate, as I heard it, that they will not use the

information in the meantime. That is our problem.

Now, the evaluator has used it and we have got a

problem with his report. But once it is received,

if the Department then proceeds to make use of it,

Smith Kline 28 13/8/91

then it may have the effect of doing the things

that I indicated earlier, that is to say - - -

HIS HONOUR: Quite, but if your entitlement to interlocutory

relief is left to consideration on one of those

days that I mentioned, then none of the commercial

disadvantage of which you speak could have flowed

to your client by that date and if, in accordance

with your present argument, you are entitled to

relief as broad as that which you now seek, then I

should have thought that the order then to be made,

if you were successful, would give you all the

protection which you might presently obtain.

MR ELLICOTT:  If my friend was prepared to state that there

would be no communication in relation to the

application with Alphapharm in that period which

involved in any way the use of the information,

then that may provide a solution to what is

concerning us, Your Honour. I would like to get

some instructions in relation to the matter and ask

if Your Honour would give me a few minutes?

HIS HONOUR: Yes. Well, I will adjourn for perhaps a

quarter of an hour or so in order to allow you to

get those instructions and have such conversations

as may be appropriate at the bar table, and it may

be desirable if you use the occasion of the

adjournment to consider also the procedure for

29 August and I will resume my seat when I am sent

for.

MR ELLICOTT: If Your Honour pleases.

HIS HONOUR:  So, you could let my associate know when you

are ready.

AT 11.09 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.54 AM:
HIS HONOUR:	Yes, Mr Ellicott?
MR ELLICOTT:	Your Honour, my friend, as we understand it,

has stated to the Court that they expect to receive

the evaluator's report in the next fortnight and

has also indicated that the Department will not

make any contact with Alphapharm in relation to its

application prior to the end of 30 August. On that

basis and without prejudice and without admissions,

Smith Kline 29 13/8/91

we are happy for our application, if the Court is

happy with it, to stand it over until 30 August.

HIS HONOUR: That is agreed at the bar table?

MR GARNSEY:	Yes, Your Honour.
MR ELLICOTT:	Your Honour, could I hand up a piece of paper

which is in my writing but Your Honour might like

to read those questions which seem to us to arise.

The third question is a reflection, to some extent,

of what the Court might say in answering the first

two questions. The third question, we would hope,

would not arise.

HIS HONOUR:	From where would the prohibition issue?
MR ELLICOTT:	It would be a prohibition that would lie to

the Full Court. Theoretically, it could go to a

single Justice.

HIS HONOUR: But, from where?

MR ELLICOTT:  It would be directed to those Justices who

exercised the discretion.

HIS HONOUR:	But who would direct it?
MR ELLICOTT:	The Court.
HIS HONOUR:	The Court would direct it to the Justices?

MR ELLICOTT: Yes, because the Justices, on that view, would

not be sitting as Justices, they are just personae

designatae and they are simply - the Court, who is familiar with other provisions that do not pick up

High Court Justices, although they used to as

personae designatae and therefore is the repository

of discretions which are statutory. The question

arises whether the Court - and I appreciate that

third question - could equally be - it need not be
the Full Court but it could be to a single Justice

of the Court sitting as the Court.

HIS HONOUR:  The mind does boggle a little.

MR ELLICOTT: It does, Your Honour, but it only boggles

because the jurisdiction is statutory if it is valid. It worries the litigants, Your Honour.

HIS HONOUR:  Yes. Just give me a moment, Mr Ellicott, while

I look at question 2. Could question 2 equally be

asked in these terms: "in the jurisdiction

purportedly conferred by" - the relevant provisions

- "be exercised by a Full Court of the High Court

constituted in conformity with section 19 of the

Judiciary Act"?

Smith Kline 30 13/8/91

MR ELLICOTT:  Your Honour, the point, as we would put it, is

whether "the High Court" means the High Court as

described in section 5, I think it is, of the High

Court Act. The argument is really saying, as a

matter of statutory construction, does that mean the seven Justices as defined in that section or

can the Court avail itself of the Judiciary Act and

the section that says it can sit - - -

HIS HONOUR:  But there are really two questions, are there

not? One is one of statutory construction and the other is one of constitutional power.

MR ELLICOTT:	Yes.
HIS HONOUR:	On the one hand, you wish to ask whether the

jurisdiction or the power conferred by

section 35(2) on the High Court is a power being

part of the judicial power of the Commonwealth?

MR ELLICOTT: Yes, Your Honour.

HIS HONOUR:  And the second question is whether "the High

Court", in section 35(2) means thereby the

aggregation of the several Justices or whether it
means the High Court exercising the judicial power
of the Commonwealth, and those are the two areas.

MR ELLICOTT: Yes, or whether it just means the High Court and that somehow it can pick up - it can work out

for itself how it should constitute itself, even

though it is not sitting to exercise the judicial

power of the Commonwealth.

HIS HONOUR:	I see.
MR ELLICOTT:	The first question raises two matters, as we

would see it at the moment: one is, "Is it an

exception or regulation?", and secondly, "If it is

an exception or regulation, is it invalid if it

does not confer the judicial power of the

Commonwealth on the High Court but some other form

of discretion?"

Question 2 then picks it up and says, well, if

it is not invalid under that, must it be constituted

- if the Court said well, it was exercising a

judicial power then, no doubt, it may well say that

section 19 or section 15 of the Judiciary Act could

be relied on. If it said it was not the judicial
power of the Commonwealth, it would then have to

find what basis there was for departing from

section 5 of the High Court Act.

HIS HONOUR: Well, let me understand this with more

precision if I can. The first question which you

propose is whether section 33(3) of the Federal

Smith Kline 31 13/8/91

Court of Australia 1976 is invalid. The first

ground advanced in support of invalidity is that that provision is not an exception or regulation

which the Parliament is empowered to prescribe by

section 73 of the Constitution?

MR ELLICOTT:	Yes.
HIS HONOUR:	The second ground of alleged invalidity, as I

understood it, was that the power which that

section purports to confer upon the High Court is

not part of the judicial power of the Commonwealth.

MR ELLICOTT: That is correct, Your Honour.

HIS HONOUR:  So that on either of those grounds the first

question which you proposed, if either ground

succeeds, is an answer "Yes, it is invalid."?

MR ELLICOTT: It is invalid.

HIS HONOUR:	Assuming that it is valid, contrary to both of those arguments, another question then arises and
that is as to the manner in which the power
conferred by section 33(3) falls to be exercised.
MR ELLICOTT:	Yes.
HIS HONOUR:	Now, do you put that as a matter of

construction or as a matter of constitutional

power, or both?

MR ELLICOTT: It probably wraps up both, Your Honour, but at

the end of the day it is a matter of construction.

HIS HONOUR:  Well now, alternatively, which way would you

put it in terms - perhaps, not alternatively.

Assuming that the answer to the first question is

against you, what is the answer that you would

propose to the second question?

MR ELLICOTT:  We would propose that it be answered, "Yes",

that is to say that the Court must be composed of

the Chief Justice and the six Justices. That is

the answer that we would argue for. If the answer

to that is "No", then the third question arises and

that really raises the nature of the jurisdiction

or discretion which the Court is exercising.

Rather than "the Full Court of the High Court" in

question 3, another way would be "a prohibition or

other remedy to any court".

HIS HONOUR:  I take it question 3 would extend to the

possibility of the writ going from the Federal

Court to the High Court.

Smith Kline 32 13/8/91

MR ELLICOTT:  Yes, and therefore to nominate the Full Court

of the High Court was probably a deferring to the

dignity of the Court more than anything else,

Your Honour, than the reality of the provision.

HIS HONOUR:  Mr Ellicott, I do not see any cogent reason why

the third question should be put in this litigation

and it seems to me that if any question along the

lines of the third question were to arise, it could

be the better addressed with an appreciation of the

reasons for the answers to the first two questions

and I would not be proposing, therefore, to direct

the third question in those circumstances.

MR ELLICOTT:	Your Honour may say that Your Honour does not see fit to do that because Your Honour does not
think it arises at this stage. That is because we have not got to that stage; we have not pursued an
application for special leave.  The question has
gone in simply to indicate that the question is there. It could arise. It would assist the
resolution of the issues that both the litigants in
this proceeding and in the other proceeding and, indeed, the Court might face, in the light of the answers, to questions 1 and 2.

Now, I can appreciate, with respect, what

Your Honour has said to me. It ought to be a

question which can be answered after the answers

are given to question 1 and 2.

HIS HONOUR:  The opportunity could be afforded by listing

the application for special leave sequentially to

the present proceedings.

MR ELLICOTT: Yes, Your Honour. There would be no

difficulty in raising it, I suppose, but we would

not want to do that until we knew the answer to

question 1.

HIS HONOUR:	The proposal is that I should direct that these questions be determined by a Full Court, but is it
proposed that there should be other procedures adopted by the respective parties?

MR ELLICOTT: Well, Your Honour, for our part, we are

content that Your Honour refers those questions

into the Full Court but I do not know whether my

friend has any problem with it because they do not

depend on any facts.

HIS HONOUR:  I am thinking only of the necessity to get the

procedure right so that we do not waste time on

29 August. Perhaps I will hear what the

Solicitor-General and Mr Garnsey have to say.

MR ELLICOTT: If Your Honour pleases.

Smith Kline 33 13/8/91

HIS HONOUR:  Mr Solicitor, what do you have to say, first of

all, as to the proposal to direct that those first

two questions should be answered by the Full Court?

MR GRIFFITH:  Your Honour, we are content that the

Full Court should answer those two questions.

HIS HONOUR:  And is it proposed that there should be any

further procedures adopted in order to raise either

the same or similar questions?

MR GRIFFITH:  Your Honour, it is a matter for Your Honour's

direction but our position remains, Your Honour,

that the proceedings before the Court today are an
inappropriate mechanism for these questions to be

put before the Court. In outline, Your Honour, we

say that this comes within the traditional

definitions of "vexatious proceedings" for this
litigation to issue, raising points which are

already before the Court and fully capable of being

argued and put before the Court in the other

proceeding and that comes very much within the

traditional definition of "vexatious proceedings".

Your Honour, as we have indicated, it does

seem to us that both these issues can be raised in

the other proceedings. Indeed, Your Honour, the

second one - my learned friend's second question -

we see as a matter which cannot be raised in these

proceedings. It is not a matter which is at issue
under the statement of claim, Your Honour, but it

is one, we would submit, that very much could be

put at issue in connection with the special leave

application which is already extant in the other

proceedings and which was adjourned over last

Friday.

MR ELLICOTT:  What do you mean by "the other proceedings"?

I do not understand - - -

MR GRIFFITH: Well, Your Honour, the two proceedings NG298

of 1990 and 299 which are the subject-matter of the

special leave.

HIS HONOUR: 

You had indicated earlier that you proposed to

take out a summons to strike out the whole of the
present action as a vexatious proceeding.

MR GRIFFITH: That was our disposition, Your Honour, but at

the same time we are anxious to join in ensuring
that these questions are disposed of as soon as

possible by the Court.

HIS HONOUR:  If you were to take out a summons and that

summons were listed before the Full Court on the

same occasion, your rights would be fully

protected?

Smith Kline 34 13/8/91

MR GRIFFITH: Yes, Your Honour, but I mean at the end of the

day we are happy just to argue the points and not

getting bogged down in procedural matters. So

that, Your Honour, we would have no difficulties,

as I have indicated, if my learned friend filed a

notice of appeal. We would lodge a notice of

objection and then, Your Honour, my learned friend could state those questions, or Your Honour could, in those proceedings and then we would say,

Your Honour, the procedural argument would fall to one side because the Court was, without any problem on our part, Your Honour, able to go directly to

the points my learned friend seeks to raise.

Your Honour, we do not really want to bother the

Court arguing out a vexatious proceedings issue when, at the end of the day, it does not matter

very much. But at the same time we feel we cannot

stand by, Your Honour, and let a plaintiff, as it

were, issue proceedings in the air claiming

invalidity of certain provisions as it chooses to

attack as has happened in this case.

HIS HONOUR: Well, if the matter is standing over, of

course, the questions which are now propounded by

Mr Ellicott can be reserved by me for the

Full Court in the present proceedings.

MR GRIFFITH: Yes, Your Honour.

HIS HONOUR:	So that any other issue that arises in the present proceedings is by no means foregone by any
party.
MR GRIFFITH:	Your Honour, I think we are happy to go along

with that because - we are just anxious not to have

a precedent. One can have writs of this sort but

we are anxious for the issue to be disposed of.

HIS HONOUR: Very well, we can avoid the precedent in that

case.

MR GRIFFITH: Yes. So that, Your Honour, on that basis

perhaps it is sufficient if the questions get to

the Court by one route rather than two or three.

HIS HONOUR:  Yes. Well, I will see what Mr Garnsey has to

say.

MR GARNSEY: If Your Honour pleases, we submit, without

wishing to be difficult, that Your Honour should

pile Pelion on Ossa and list proceedings No 95 of

1991 for hearing on 29 August.

HIS HONOUR:	Those are the special leave proceedings.
MR GARNSEY:	No, I am sorry, that is Mr Ellicott's separate

proceedings with the written statement of claim.

Smith Kline 35 13/8/91

We would propose to file a defence to those proceedings and we would also seek that the special

leave proceedings, of which there are two sets

because there were two sets of proceedings right

along, should also be listed, Your Honour suggested

sequentially or following - - -

HIS HONOUR:  Yes. When you say you propose to file a

defence - and a demurrer?

MR GARNSEY: No, Your Honour. Well, I should say, subject

to instructions, no.

HIS HONOUR: Let me understand this correctly. In the

proceedings which are listed before me	today, and
that is No S95 of 1991, it is in those	proceedings
that you propose to file a defence?

MR GARNSEY:	Yes.
HIS HONOUR:	But not a demurrer?
MR GARNSEY:	No, Your Honour.  I think that is correct,

Your Honour. We do not seek to say, if my friend

wishes to argue about section 35 of the Judiciary

Act in these proceedings, that he should not do so.

We really seek to have all substantive issues

determined as soon as possible. They are my

instructions. What we would not want, if

Your Honour pleases, is the questions that

Your Honour has directed should go to the

Full Court being determined and then have further procedural complications effecting further delay,

and there is a critical time frame to enable the

marketing of our product in the new year which

really depends on the prompt resolution of matters

subject to, of course, what the Court chooses to

do, in early September.

HIS HONOUR:	Yes. Well, of course, the situation is this, is it not, that if there is a right of appeal which
matter, to some extent, remains in abeyance until can be exercised by Mr Ellicott's clients, then the that appeal is disposed of, that is, all the issues that are between the parties?
MR GARNSEY:	Yes, Your Honour.
HIS HONOUR:	What that has to say about any form of

interlocutory relief is no doubt a matter for

argument in due course. But, if, on the other

hand, there is no right of appeal held to exist,
then Mr Ellicott is forced back to the special
leave provisions and in relation to those

provisions he has made his application to the

Chief Justice for interlocutory relief and failed.

Smith Kline 36 13/8/91

MR GARNSEY:  Yes, Your Honour.

HIS HONOUR: Now, as at present advised, I do not see that

there is any harm done, as it were, to your

interests by adopting the procedures that we have

suggested.

MR GARNSEY:  It is not inconceivable that if matter No S95

of 1991 were not formally determined on 29 August -

or heard -

HIS HONOUR: Is not formally determined?

MR GARNSEY:	Yes, if there were not a formal hearing of those proceedings on 29 August, then arguments
could be raised that there were some other matters raised by those proceedings which could still
attract the attention of the Court. When I say "not inconceivable", Your Honour, it takes some
imagination to construct such an argument, but we
would not put it beyond the bounds of possibility
and we would not wish to leave that open, if
Your Honour pleases, and it is for that reason that
it is our respectful submission that proceedings
No S95 of 1991 be listed for hearing on 29 August,
along with the separate questions.

HIS HONOUR: That is the proceedings that are now pending

before me now here?

MR GARNSEY:	Yes, Your Honour.
HIS HONOUR:	If I make it 30 August, there is no harm done

there, is there?

MR GARNSEY:	No, Your Honour.
HIS HONOUR:	Then what I would propose to do - do you have

anything to say in reply, Mr Ellicott?	I am sorry,
have you finished, Mr Garnsey?

MR GARNSEY:  Yes, Your Honour.

MR ELLICOTT: Could I hand up a decision of the Court in

Collins v Reg, 133 CLR 120, and in particular to

page 122, a passage in the middle of the page.	It
says:

In the ordinary course of litigation,

criminal or civil, it is considered that a

party to proceedings should have the right to

present his own case. But an application for

leave or special leave to appeal is not in the

ordinary course of litigation. The practice

of this Court in granting or refusing leave or

special leave makes this clear. First, until

the grant of leave or special leave, there are

Smith Kline 37 13/8/91

no proceedings inter partes before the Court.

This is so even in a case in which the application for leave or special leave is

opposed. Whilst notice of intention to move

given in writing, which is filed in the	the Court for leave or special leave may be special leave is made orally in court.
Notwithstanding that the notice of intention
to apply is served on persons who may be
interested to oppose the application, the intending applicant is not bound to move the
Court. When the motion is moved, the
applicant for such leave or special leave is no more than an applicant desiring to obtain the Court's leave to commence proceedings in the Court. Secondly, the application must
exhibit features -

et cetera. Now, Your Honour, my friend the learned

Solicitor has said a couple of times - he has

referred to the other proceedings and then he goes
on to talk about the applications for special
leave. But they are not strictly - and this is why
the statement of claim is before the Court in S95 -
they are not strictly proceedings before the Court.

They bear a different character and that is

something that the Court seems to have accepted in

that case and it has been adopted later in other

cases. That is the reason why we are proceeding in

this case. That is why we took out the statement

of claim. Otherwise we would not have been
bothered to do so and that is the reason why we

would submit that Your Honour should simply state

these questions to the Full Court and reserve them

for consideration by the Full Court in these

proceedings. They will be answered, and that will

determine the proceedings one way or the other so

far as those answers are relevant.	They will go a
long way to determine the whole proceedings.	On
one view, they will determine them altogether.

HIS HONOUR:  Mr Ellicott, I do not think I need call on any

response to that submission.

MR ELLICOTT: If Your Honour pleases.

HIS HONOUR:  Am I right in thinking that if the answer to

the first question which you propose, that is in

relation to section 33(3) of the Federal Court of

Australia Act 1976, is answered adversely to you

and equally, the second question is answered

adversely to you, no question would then arise in

relation to the Smith Kline & French proceedings on

appeal from the Full Federal Court which would

involve consideration of section 35(2) of the

Judiciary Act?

Smith Kline 38 13/8/91

MR ELLICOTT:	No.
HIS HONOUR:	In other words, we can leave out section 35 of

the Judiciary Act?

MR ELLICOTT:  I have not put it in there because we would

expect that there will be a similar reference in

the other proceedings.

HIS HONOUR:  Yes, quite. But just to ensure that there is

no possibility of some lacuna in the questions

arising here, can I state these questions confident

in the knowledge that no problem arising under

section 35(2) of the Judiciary Act will arise in
the present proceedings if, so far as the validity
of 33(3) is concerned, those questions are resolved

adversely to you?

MR ELLICOTT:  I think Your Honour can.

HIS HONOUR:  Very well. Then the order which I would

propose to make - and I will hear counsel on it if

a Full Court of this Court the questions 1 and 2 in the form which are proposed,

they have anything further to say - is that the consideration of

present application should stand adjourned until

subject to one minor alteration which I will

mention in a moment, and that arrangements

administratively would be made for the listing

before a Full Court on 29 August of the questions

which are so reserved and also of any further

proceedings in this action - that is in S95 of

1991 - which may then be ready for determination by

the Full Court.	I have in mind if there should be
a demurrer.

I would also arrange administratively for the

special leave proceedings in the matters now pending

in the Federal Court to be listed sequentially to

the Full Court matters arising in S95 of 1991, again

on 29 August of this year. Now, those being the proposed orders, does

counsel have any further submission to make with

regard to them?

MR ELLICOTT:	Your Honour, on the question of whether the applications for special leave should be listed, I
would submit that that is not necessary
because - - -

HIS HONOUR:  It may not be necessary. They may as well be

there and whatever course is appropriate to be

taken can be resolved. In other words, it would be

regrettable if the Court was not fully seized of

the whole of the matter on those two days. It may

Smith Kline 39 13/8/91

be, of course, that they will not be disposed of

but - - -

MR ELLICOTT:  I take it that Your Honour is also adjourning

to that date the application for interlocutory

relief.

HIS HONOUR: That is the present application.

MR ELLICOTT:	Yes.
HIS HONOUR:	I am adjourning that to the 30th.
MR ELLICOTT:	To the 30th, to a Full Court or -
HIS HONOUR:	No, to myself, reserving the questions which have arisen in these present proceedings to the
Full Court on the 29th.
MR ELLICOTT:	Your Honour, the Court has chosen to fix this

for the 29th and 30th.	I wonder whether that is
time enough.	May I raise that question,

Your Honour, whether those two days may be

sufficient?	On one view, one might think it is; on
another view, one might think it is not.	I

understand it is the end of the sittings and - - -

HIS HONOUR:	The 29th is the day which was available for the Full Court, and the questions arising are, I should
have thought, extraordinarily brief. One is
whether or not section 33(3), or in the other proceedings, 35, is an exception. That can admit
of some research but not, one would have hoped,
long argument.  The next question is the question
as to the nature of the power which is conferred by
those respective sections on the High Court, and again, one would not have thought that that would
take a great deal of time, given, one would have
hoped, some nodding familiarity by the Court of its
own jurisdiction.

MR ELLICOTT:  Your Honour's wisdom may turn out, with

respect, to be correct, but I simply say to

Your Honour that the question may take a little

longer to ventilate.

HIS HONOUR:  Yes. I would not wish to give any impression

that more than one day is available.

MR ELLICOTT:  I wanted to make it clear, Your Honour, that

so far as my assessment of the matter was

concerned, that it may take more than a day and

that it is a -

HIS HONOUR:	Yes.	What is your assessment, Mr Ellicott?
Smith Kline	40	13/8/91

MR ELLICOTT:  Your Honour, I had thought that two days might

be needed to deal with it.	I was concerned about
other things having to be dealt with as well.	But
it is a question of fundamental importance.

HIS HONOUR:	Yes.
MR ELLICOTT:	It is about the place of the Court in the

Constitution. It is the first time since

Federation that the Court will have considered its

own role in a positive way and once it makes that

decision it will reflect on its future. It cannot

be said that the thoughts or the arguments or

submissions of the legal profession would not be of

assistance to the Court on that matter. It may

involve a consideration of a number of issues and

not only whether, in the strictness, "exception"

means this or that, or "regulation" means this or

that, but whether the founding fathers, if I can

call them that, had in mind that the Court's role

was sufficiently stated in a section which enabled

the Court, in accordance with the procedure as

described in that case I just referred Your Honour

to, to say who could come to the Court and who

could not. That may involve a consideration, if

the Court wanted to consider it in the submissions

of counsel, as to the sufficiency or otherwise of

that procedure, as to whether it really is

something that is a method which the founding

fathers contemplated of accepting or regulating

appeals to this Court.

HIS HONOUR:	Yes.
MR ELLICOTT:	Of course, the Court is better informed than

counsel is as to why the Court grants special

leave. On the other hand, counsel is better

informed as to the effect that the grant or refusal

of special leave has on individual subjects in this

country. It is not an unimportant question. I am

not suggesting Your Honour is not - or the Court

will not treat it as extremely important, but it is

a momentous question so far as litigants are

concerned because their right to come to this

Court, if it existed, has gone if the question is

answered "No". It will probably be gone for ever

and a day. The Court will not turn back.

HIS HONOUR:	I understand - - -
MR ELLICOTT:	I hope Your Honour did not mind me saying

that, but only to indicate that I thought a day

might not be enough - - -

HIS HONOUR:  I am sure it is helpful to all parties to

understand the scope of the argument that you

propose to address, Mr Ellicott.

Smith Kline 41 13/8/91

MR ELLICOTT: If Your Honour pleases.

HIS HONOUR:  I will, however, find out what the estimate of

other counsel is of the time. Mr Solicitor.

MR GRIFFITH:  Your Honour, we would be further helped in

assessing the strength of the argument if the Court were able to adopt its usual practice of indicating informally, perhaps, that there should be an

exchange of written submissions. We would suggest,

Your Honour, the plaintiffs' submissions on
Thursday, 22nd, and we would be able to respond on

Tuesday, 27th.

HIS HONOUR:  Yes. Mr Garnsey.

MR GARNSEY:  I think I should say we are in the Court's

hands, Your Honour, but we would be content for

29 August, with the limitations that Your Honour

has indicated.

HIS HONOUR:  Yes. And what do you say about written

submissions?

MR GARNSEY:  We adopt what the learned Solicitor-General

said, if Your Honour pleases.

HIS HONOUR:  What do you have to say about written

submissions, Mr Ellicott?

MR ELLICOTT:  We would submit that if the learned Solicitor

gets our submissions by the Monday before that,

which I think is the 26th, that is sufficient time.

HIS HONOUR: That is a very brief time to reply to

submissions - - -

MR ELLICOTT: Well, he has got to prepare his submissions in

any event for the Court, and we have got to prepare

ours for the Court, and the matter is being brought

on quickly; it is an important issue in question

and I would submit that to have 10 days or whatever

it is from today, or 15 or 12 days, is not an

unreasonable time.

HIS HONOUR: 

I think perhaps if I delay both days by a day,

so that we have Friday, 23rd, and Wednesday, the
28th. That will leave the Court with a very

abbreviated time but perhaps that is

something - - -

MR ELLICOTT: Yes, and it leaves us with an abbreviated time

to consider the momentous submissions of the

learned Solicitor.

HIS HONOUR:  You can have your choice, Mr Ellicott. You can

go back one - - -

Smith Kline 42 13/8/91

MR ELLICOTT: I will accept the latter, Your Honour.

HIS HONOUR: That is the 23rd for you and 28th for the

Solicitor-General.

MR ELLICOTT: If Your Honour pleases.

HIS HONOUR: 

Very well, the order that I make is that the

present application should stand adjourned until
Friday, 30 August;

I reserve for consideration of the Full

Court - (1) the question whether section 33(3) of

the Federal Court of Australia Act 1976 (Cth) is

invalid, and (2), if the answer to question (1) is

"No", the question whether the High Court, in
exercising its discretion to grant special leave to

appeal pursuant to section 33(3) of the Federal

Court of Australia Act must be constituted by the

Chief Justice and the six Justices of the Court;

I direct that written submissions be filed and

delivered to the opposing parties by the plaintiffs

on or before Friday, 23 August, and that written

submissions in reply be filed and delivered to the

plaintiffs by the respective defendants on or

before 28 August.

The cost of today's proceedings will be

reserved generally.

Are there any other orders that are sought?

MR ELLICOTT:	No, Your Honour.
HIS HONOUR:	Very well, the Court will adjourn.

AT 12.32 PM THE MATTER WAS ADJOURNED

UNTIL FRIDAY, 30 AUGUST 1991

Smith Kline 43 13/8/91