British American Tobacco Australia Limited v Gordon & Ors; Brisih American Tobacco Australia Services Limited v Slater & Gordon Ltd & Ors [2007] VSC 355

For British American Tobacco Australia Services Limited (BATAS)

1 These are my reasons in the matters which are before me which are Proceeding 5617 and 5618 of 2007.

2 I have been appointed by the Chief Justice to manage these cases through their interlocutory stages and if possible to try them. I will not here rehearse their history in the Supreme Court of New South Wales and in this court. Much of this appears in my reasons for judgment published on 22 June 2007 and 6 July 2007.

3 There are in place a series of interim injunctions and undertakings made by or given to the New South Wales court late in 2006 and early 2007. I have in some respects modified them and certain of my orders are presently the subject of applications for leave to appeal in the Court of Appeal.

4 The matter presently before me is to determine whether these proceedings should be the subject of application for interlocutory injunction as the defendants contend, or whether they should proceed directly to a hearing.

5 I have in the past taken the position that the appropriate course is that the proceedings move to trial with the interim restraints in place and that this trial should be conducted as early as possible. Having heard what the parties have said I remain of that view for the following reasons. First, the consequence of an interlocutory order of the kind sought by the defendants is to in effect dispose finally of the issues in these cases.

6 Secondly I respectfully agree with the observations of Justice Brereton in the New South Wales court that the appropriate logical sequence is that these proceedings be dealt with prior to the proposed application by the estate to set aside the Court of Appeal decision.

7 Third, the interposition of an interlocutory application including the prospect of appeal will increase the delay and costs to the parties in the resolution of these proceedings.

8 While it may be correct that one of the issues in the proposed interlocutory applications will overlap an important issue in the proceeding before the Court of Appeal the fact is that the issues in those two proceedings are separate and different and logically must be dealt with in that way. Accordingly as a matter of the proper management of these cases I decline to give directions to enable interlocutory injunction applications to take place. I will make such directions as are appropriate for the speedy preparation of these cases for trial at the earliest opportunity.