Toll Holdings Ltd v Stewart

Toll Holdings Ltd (Toll) filed an appeal against a decision made by the first and third respondents (the DSE parties) in the Federal Court of Australia. The second respondent sought a restitutionary remedy against the DSE parties. The DSE parties submitted to the appeal but argued that the second respondent cannot seek such a remedy against them. The court was required to determine whether this issue should be decided as part of the appeal or heard by a single judge before the appeal.

The court considered the procedural issue of whether the second respondent's claim for a restitutionary remedy against the DSE parties should be decided as part of the appeal or by a single judge before the appeal. The court ordered the DSE parties to file and serve within seven days a document no more than three pages identifying the basis of their objection to paragraphs [24] and [25] of the second respondent's outline of submissions and a proposed procedural mechanism for the disposition of issues raised by those paragraphs by a single judge prior to the appeal. The second respondent was required to file and serve within seven days thereafter a document of no more than three pages in answer to that.

The court ordered the first and third respondents to file and serve within seven days a document no more than three pages identifying the basis of their objection to paragraphs [24] and [25] of the second respondent's outline of submissions and a proposed procedural mechanism for the disposition of issues raised by those paragraphs by a single judge prior to the appeal. The second respondent was required to file and serve within seven days thereafter a document of no more than three pages in answer to that. The court ordered the parties to bring to the attention of the chambers of Justices Beskano, McKerracher and Pagone the terms of these reasons, the terms of these orders, and the documents that the court had ordered to be filed. The court reserved the question of costs.

The court ordered the parties to file and serve documents within seven days outlining their positions on the procedural issue of whether the second respondent's claim for a restitutionary remedy against the DSE parties should be decided as part of the appeal or by a single judge before the appeal. The court ordered the parties to bring these documents to the attention of the chambers of Justices Beskano, McKerracher and Pagone for consideration. The court reserved the question of costs.