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