Smith Kline & French Laboratories (Australia) Limited v The Secretary to the Department of Community Services and Health; v The Secretary to the Department of Community Services and Health

Smith Kline & French Laboratories (Australia) Limited and other related entities (the appellants) sought special leave to appeal to the High Court of Australia. The dispute concerned the validity of section 33(3) of the Federal Court Act, which the appellants argued was an invalid challenge to their right of appeal to the High Court. The Secretary to the Department of Community Services and Health was the first respondent, and Alphapharm Pty Limited was the second respondent.

The primary legal issue before the High Court was whether the appellants were entitled to special leave to appeal, and in conjunction with this, whether the Court had jurisdiction to hear the matter given the ongoing proceedings challenging the constitutional validity of section 33(3) of the Federal Court Act. The appellants sought to have this section declared invalid, thereby asserting their right of appeal.

The Court considered whether to stand over the application for special leave until the hearing of the action challenging the constitutional validity of the section. Justice Gaudron questioned whether the appellants should be put to an election between pursuing their constitutional challenge and their application for special leave. The appellants argued that they could not be put to such an election, as the constitutional challenge was a separate matter informing the Court of their position. The Court was also informed that the first respondent was prepared to give an undertaking to preserve the status quo until a specified date, preventing further processing of the Alphapharm application in the interim.