Kockums AB v Commonwealth of Australia [2002] FCAFC 138

FEDERAL COURT OF AUSTRALIA

Kockums AB v Commonwealth of Australia [2002] FCAFC 138

PRACTICE AND PROCEDURE – order for separate determination of questions – making of declarations in answer to separate questions – whether answering of the questions would provide, and making of declarations did provide, an "advisory opinion" Federal Court of Australia Act 1976 (Cth) s 21 Federal Court Rules O 29 r 2 Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334 applied Director of Fisheries (Northern Territory) v Arnhem Land Aboriginal Land Trust (2001) 109 FCR 488 followed Harts Australia Ltd v Commissioner of Taxation (2001) 109 FCR 405 followed Copyright Agency Ltd v Charles Sturt University (No 2) (2001) 53 IPR 383 referred to

KOCKUMS AB v THE COMMONWEALTH OF AUSTRALIA & ANOR N 1178 of 2001 FRENCH, LINDGREN & STONE JJ 17 MAY 2002 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1178 OF 2001

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: KOCKUMS AB

APPELLANT

AND: THE COMMONWEALTH OF AUSTRALIA

FIRST RESPONDENT

AUSTRALIAN SUBMARINE CORPORATION

PTY LIMITED

SECOND RESPONDENT

JUDGES: FRENCH, LINDGREN AND STONE JJ

DATE OF ORDER: 17 MAY 2002

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The appeal be allowed. 2. Each of Questions 1(a) and 1(b) referred to in the order for separate determination made on 1 August 2001 in proceeding N 128 of 2001 be answered "Inappropriate to answer". 3. The Declarations in paragraphs 4 and 5 of the orders made on 1 August 2001 in proceeding N 128 of 2001 be set aside. 4. The appellant be discharged from the undertaking it gave in paragraph 6 of the orders made on 1 August 2001 in proceeding N 128 of 2001. 5. The parties provide in writing to each of the Associates to the members of the Court by 24 May 2002 any submissions they may wish to make as to the costs of the appeal. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.