Trade Practices Commission v Ampol Petroleum (Vic) Pty Ltd

[1994] FCA 640

690 99

JUDGMENT No. . . , J .,,-.,,

Ls - T OF AUSTRALIA )

)

IA D T - RE-Y 1 1

- )

E PRACTICES COMMISSION

Applicant - -

- and -

PETROLEUM IVICI PTY LIHITED and QTIiEW

J3m.E:	Heerey J
RA!ZB:	2 September 1994  RECEIVED
m&E:	Melbourne  14 SEP 1994

FEDERAL COURT OF

AUSTRALIA

PRINCIPAL /' ,'

REASONS FOR JUDGMENT REOIGTRY

I think it is clear, as the applicant points out,

that the statute gives to the trial judge the power to grant leave to appeal must carry with it the notion that the judge granting leave is not going to be concerned with the merits of the decision. Ex hypothese the judge has given the decision because he or she thinks it is the correct one. I think also, as was conceded, this is a matter of practice and procedure and the usual restraints on the appellate process enunciated in the

Perhaps surprisingly, the question of the application of

Adam P Brown Male Fashions P t y Ltd v P h i l i p Morris Inc ( 1981) 148

CLR 170 will apply, although that is more a matter for the Full

Court on the appeal itself, if leave be given. However, it does seem to me that there is force in what Mr Merkel says as to this

case raising questions that go beyondthis particular litigation.

confidentiality principles to examinations under s.155 were only raised in Constantine's case early this year. As Jenkinson J's judgment indicates, there remains much to be worked out, and in particular the duration of that obligation of confidence and whether it extends beyond the commencement of proceedings.

All this leads me to the conclusion that there are matters of general principle which take this particular decision out of the general run of interlocutory decisions and make it appropriate that leave be granted. I will grant leave to appeal.

I will order that the appeal be expedited. I will reserve the

costs; and I will stay the operation of the order that I made on

31 August until the hearing and determination of the appeal.

I certify that this and the

preceding page are a true copy of the reasons for judgment of his Honour Mr Justice Heerey.

Counsel for the applicant:	Mr R Merkel QC with Mr M J
Crennan
Solicitor for the applicant:	Australian Government Solicitor
Counsel for the respondent:	Mr P J O'Callaghan QC
Solicitor for the respondent:	Hall h Wilcox
Date of hearing:	2 September 1994

JUDGES' CHAMBERS

FEDERAL COURT OF AUSRALIA
450 LITTLE BOURKE STREET

MELBOURNE, 3000

12 September 1994

Sonia Cornale
Federal Court of Australia
Principal Registry
Law Courts Building
Queens Square

SYDNEY NSW 2000

Dear Sonia,

I enclose a copy of the judgment delivered by his Honour Mr

Justice Heerey in the above matter on 2 September 1994

A diskette record of the judgment is also enclosed.

This judgment is not for general distribution.

Regards,

David ~rennan

Associate to Heerey J