Minnesota Mining & Manufacturing Company v Tyco Electronics Pty Ltd [2002] FCAFC 219 (16 July 2002)

Last Updated: 16 March 2004

FEDERAL COURT OF AUSTRALIA

Minnesota Mining & Manufacturing Company v Tyco Electronics Pty Ltd
[2002] FCAFC 219

PRACTICE AND PROCEDURE – motion to postpone hearing pending High Court of Australia decision





























MINNESOTA MINING & MANUFACTURING COMPANY V TYCO ELECTRONICS PTY LIMITED
N 1598 of 2001

HEEREY, EMMETT AND DOWSETT JJ
16 JULY 2002
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	N 1598 OF 2001

BETWEEN:	MINNESOTA MINING & MANUFACTURING COMPANY APPELLANT
AND:	TYCO ELECTRONICS PTY LIMITED (ACN 000 260 622) RESPONDENT
JUDGE:	HEEREY, EMMETT AND DOWSETT JJ
DATE OF ORDER:	16 JULY 2002
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.	The motion by notice dated 28 June 2002 is dismissed with costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	N 1598 OF 2001

BETWEEN:	MINNESOTA MINING & MANUFACTURING COMPANY APPELLANT
AND:	TYCO ELECTRONICS PTY LIMITED (ACN 000 260 622) RESPONDENT

JUDGE:	HEEREY, EMMETT AND DOWSETT JJ
DATE:	16 JULY 2002
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

THE COURT:

1 There is before the Court a notice of motion dated 28 June 2002 by which the appellant seeks orders that the hearing of the appeal set down for 8 and 9 August 2002 and certain consequential directions relating to the filing of submissions and lists of authorities be vacated, and that the appeal be stood over for a directions hearing and the fixing of a new date after the High Court of Australia delivers judgment in Aktiebolaget Hassle & Anor v Alphapharm Pty Ltd or until the callover for the February 2003 sittings of the Full Court, whichever is the earlier.

2 By orders made on 2 and 3 July 2002 Heerey J directed that the motion be dealt with on the papers, that the appellant file and serve any submissions by 5 July and that the respondent file and serve any affidavit or submission on which it wishes to rely by 10 July. The appellant had already filed an affidavit of Sue Maree Gilchrist affirmed 28 June 2002 in support of the motion. Subsequently the appellant filed submissions on 5 July and the respondent filed an affidavit by Philip Nathan Argy affirmed 10 July 2002 and submissions.

3 We are not persuaded that the hearing date should be vacated. In the light of the factual setting of the present appeal, there is not a real chance that the decision of the High Court in the Alphapharm case is likely to be determinative of the issues in the present case.

4 In any event, the prospect of the High Court’s decision in the Alphapharm case creating problems for the hearing of the present appeal would have been apparent by 23 November 2001 when the High Court granted special leave. Notwithstanding that, the appellant agreed on 15 February 2002 to the present appeal being listed. The matter was put over to the August sitting, admittedly because of a prior commitment of the respondent’s counsel, but there was no mention of the High Court Alphapharm appeal and, as the listing judge remarked, "prima facie the matter should go forward". The present application was not made until the end of June.

5 Even if there were the close similarity between the present case and the Alphapharm case asserted by the appellant, which we do not accept, the usual position is that any court has to proceed when the parties are ready and apply the existing law as best it can, notwithstanding that there is a possibility that it may change in the future as a result of higher court decisions or legislation.

6 The motion by notice dated 28 June 2002 will be dismissed with costs.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Heerey, Emmett and Dowsett JJ.

Associate:

Dated: 16 July 2002

Counsel for the Appellant:	D K Catterns QC and K J Howard
Solicitor for the Appellant:	Freehills
Counsel for the Respondent:	D M Yates SC and A Bowne
Solicitor for the Respondent:	Mallesons Stephens Jaques
Date of Hearing:	16 July 2002
Date of Judgment:	16 July 2002