Sanofi v Parke Davis Pty Ltd

A final judgment is one which finally disposes of the rights of the parties: Hall v. Nominal Defendant [1] ; Licul v. Corney [2] ; Port of Melbourne Authority v. Anshun Pty. Ltd. [No. 1] [3] ; Carr v. Finance Corporation of Australia Ltd. [No. 1] [4] . It was not suggested that the order of the Federal Court in the present case finally disposed of the rights of the parties under s. 90 of the Patents Act: obviously it did not. What was contended by Mr. Lyons on behalf of Sanofi was that the order of the Federal Court finally determined that Parke Davis had a right to appeal to the Federal Court. The order proceeded on the basis that Parke Davis had a right to apply for leave to appeal, and that it was competent to the Federal Court to grant it leave to appeal. However, it was submitted that Parke Davis had no right to seek or obtain leave to appeal, since it had not been a party to the proceedings in the Supreme Court. It was submitted that a power of appealing is a right, and not a matter of mere procedure, and that the order of the Federal Court finally disposed of that right in the present case.

1. (1966) 117 C.L.R. 423, at pp. 439-440, 443. 2. (1976) 50 A.L.J.R. 439, at p. 444. 3. (1980) 147 C.L.R. 35, at p. 38. 4. (1981) 147 C.L.R. 247, at pp. 248, 253-254.

There is, as Mr. Handley for Parke Davis submitted, a short and conclusive answer to that contention. The Federal Court did no more than grant leave to file and serve a notice of appeal. It is always open to a court which has granted leave to appeal or special leave to appeal to rescind that grant if it later appears to the court, in the light of further information or argument, that the leave or special leave should not have been granted. That course has been taken by this Court in appropriate cases. The order of the Federal Court therefore did not finally dispose of the right of Parke Davis to appeal, or of the right of Sanofi to hold its judgment free of any possibility of appeal, because the Federal Court might, on reconsideration, rescind the grant of leave. It is irrelevant whether or not it is likely that the Federal Court would make an order rescinding the grant of leave, since it is the legal force of the judgment in question, and not its practical effect, that has to be considered in determining whether or not the judgment is a final one: see Hall v. Nominal Defendant [5] ; Carr v. Finance Corporation of Australia Ltd. [No. 1] [6] . For those reasons the order of the Federal Court was interlocutory and there was no right of appeal from it to this Court. The objection to competency was accordingly upheld.

1. (1966) 117 C.L.R., at pp. 440-441, 444-445. 2. (1981) 147 C.L.R., at pp. 248, 256-257.

It is not the usual practice of this Court to give reasons for a refusal to grant special leave to appeal, but in the present case there is one aspect of the matter which the Court thinks it proper to mention. Mr. Handley did not oppose the grant of special leave, provided that by some means or another it was made possible to determine the question arising under s. 90 as well as the question whether Parke Davis had a right to appeal to the Federal Court. No doubt the question arising under s. 90 is an important one, and it is a question which, at least in the interests of Parke Davis, ought to be determined as quickly as possible in the present case. However, those considerations do not provide sufficient reasons for departing from the established practice of this Court, which is to refuse special leave to appeal in a case in which an appeal can be taken to a Full Court of the Federal Court (or of a Supreme Court), unless that Court has already decided the very question in another case and is bound, or at least virtually certain, to reach the same conclusion in the instant case. There is no reason in the present case why we should forego the assistance that the judgments of the Full Court of the Federal Court will provide if the matter reaches this Court. Apart from that, it is sufficient to say that the matter is not one in which we consider it appropriate to grant special leave to appeal.