Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd

[2001] FCA 877

FEDERAL COURT OF AUSTRALIA

Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd [2001] FCA 877

TRUTH ABOUT MOTORWAYS PTY LIMITED v MACQUARIE INFRASTRUCTURE INVESTMENT MANAGEMENT LIMITED

NG 833 OF 1997

LINDGREN J
3 JULY 2001
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 833 OF 1997

BETWEEN:	TRUTH ABOUT MOTORWAYS PTY LIMITED APPLICANT
AND:	MACQUARIE INFRASTRUCTURE INVESTMENT MANAGEMENT LIMITED RESPONDENT
JUDGE:	LINDGREN J
DATE OF ORDER:	3 JULY 2001
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The two motions brought by notices of motion filed on 12 March 2001 by the applicant, except paragraph 4 of them, be stood over to a Full Court on 29 August 2001.

2.Costs of the hearing to date be reserved to the Full Court.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 833 OF 1997

BETWEEN:	TRUTH ABOUT MOTORWAYS PTY LIMITED APPLICANT
AND:	MACQUARIE INFRASTRUCTURE INVESTMENT MANAGEMENT LIMITED RESPONDENT

JUDGE:	LINDGREN J
DATE:	3 JULY 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. In this matter I spoke to both counsel yesterday.  I have spoken to the Acting Chief Justice, who proposes to direct that the two motions be heard by a Full Court on 29 August 2001.  For the record I will say something about the background.

2. The motions were brought by the applicant by two notices of motion filed on 12 March 2001. By the first notice of motion the applicant seeks leave to appeal from a decision of Hely J given on 5 March 2001, by which his Honour set aside a notice to produce given by the applicant to the respondent.  This application for leave to appeal was, while the second one was not, brought within the seven day period fixed by O 52 subr 10(2)(b) of the Federal Court Rules. 

3. By the second notice of motion the applicant seeks an extension of time in which to apply for leave to appeal, and a grant of leave to appeal, from decisions of Hely J of 10 July 2000 requiring the applicant to provide security for costs, and 16 August 2000 quantifying the amount of the security at $223,193.00.  The second motion is related to the first.

4. The motions were last before me on 14 June when the hearing concluded.  It is important to note that the hearing before me was, by agreement, limited to the single issue raised by paragraph 4 of each notice of motion: whether the motion should be heard by a Full Court or a single Judge.  In including in each notice of motion a request that the motion be heard by a Full Court, the applicant properly, at the earliest possible moment, indicated its preference in that respect: cf Federal Court of Australia Act 1976 (Cth) (“the Act”) subs 25(2); Federal Court Rules O 52 subr 10(2)(a). It was submitted that I had power to direct that the motions be heard by a Full Court by reason of subs 25(2B) of the Act. The parties accepted that the Chief Justice was also empowered, as an administrative matter, to constitute a Full Court to hear the motions, as a result of subss 15(1) and 25(2) of the Act.

5. On the hearing, the respondent indicated that without admitting that there was any substance or merit in the motions, it would consent to their being heard and determined by a Full Court as a matter of expediency, at least if they could be heard in the next Full Court sittings.

6. The hearing before me on the Full Court/single Judge issue was rather lengthy.  I am not yet in a position to deliver judgment.  If I should decide in favour of a Full Court, the next Full Court sittings will have been missed.  If I should decide in favour of a single Judge, it may be that I would not be that Judge (the content of my reasons for judgment might be relevant to this question).  Accordingly, whether I should decide in favour of a Full Court or a single Judge, there would be delay.

7. It appeared to me, in all the circumstances, including the respondent’s position referred to above, that as a practical matter the possibility of a hearing in the next Full Court sittings should be explored. 

8. Having spoken to the Acting Chief Justice, I informed counsel for the parties yesterday, that the motions could be listed for hearing in the next Full Court sittings.  I also spoke with them and with the Acting Chief Justice about dates.  In accordance with those discussions, the Acting Chief Justice proposes to list the motions for hearing before a Full Court on 29 August.  Accordingly, all that I need do this morning is stand over the motions, except paragraph 4 of each notice of motion, to 29 August before a Full Court. 

9. The only other order which I will make is that of reserving the costs of the hearing to date to the Full Court.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren.

Associate:

Dated:             10 July 2001

Counsel for the Applicant:	Mr N Francey
Solicitors for the Applicant:	Maurice May & Co
Counsel for the Respondent:	Mr T D Castle
Solicitors for the Respondent:	Mallesons Stephen Jaques
Date of Hearing:	12, 14 June 2001
Date of Judgment:	3 July 2001