Advanced Building Systems Pty Ltd v Ramset Fasteners (Aust) Pty Ltd

HIGH COURT OF AUSTRALIA

McHUGH J

ADVANCED BUILDING SYSTEMS v RAMSET FASTENERS (AUST) PTY LIMITED
Practice and procedure

27 June 1997
Practice and procedure

Practice and procedure—Application for stay of enforcement of costs order pending appeal to the High Court—Special leave to appeal having been granted—Principles governing exercise of discretion to grant stay—Whether applicant must show exceptional circumstances. Judiciary Act 1903 (Cth) s 77U. High Court Rules O 63 r 1.

Orders

Order:
Application for stay refused with costs.

Decision

McHUGH J.

1. This is a notice of motion dated 12 June 1997 by which the applicant seeks to stay the enforcement by the respondent, Ramset Fasteners (Aust) Pty Limited, of orders of the Full Court of the Federal Court made on 26 April 1996. The notice of motion seeks the stay pending the determination of an appeal by the applicant to this Court, special leave having already been granted and the appeal being set down for hearing on 5 August of this year. The principal order sought is a stay of the enforcement of two costs orders. The costs in question relate to proceedings at first instance in the Federal Court and on appeal to the Full Court. The costs have been taxed. The total amount payable is $651,456, being $582,956 in respect of the proceedings at first instance and $68,500 in respect of the appeal.

2. The proceedings in the Federal Court arose out of a suit by the applicant, Advanced Building Systems Pty Limited, for patent infringement and for breach of the Trade Practices Act 1974 (Cth). At first instance, Justice Hill held that the patent was valid[1]. Later he gave judgment against Advanced in respect of the patent infringement claim but held that Ramset had engaged in misleading or deceptive conduct in breach of section 52 of the Trade Practices Act[2]. On 3 May 1995, his Honour made final orders granting Advanced injunctive relief in respect of the trade practices claim. On 26 April 1996, the Full Court of the Federal Court allowed Ramset's appeal against the judgment of Justice Hill[3]. The Full Court ordered that Advanced's patent be revoked and that Advanced pay Ramset's costs of the appeal and the proceedings at first instance. Advanced then filed an application in this Court for special leave to appeal. On 14 February 1997, the Court granted special leave to appeal from the whole of the judgment and orders of the Full Court.

3. On 29 November 1996, Justice Lockhart granted a stay of the enforcement of the costs order pending the determination of the special leave application in this Court. The matter came before his Honour again on 10 April 1997 when he rejected Advanced's application for a further stay of the enforcement of the costs order pending the determination of the appeal. His Honour was not satisfied that Advanced could not obtain funds to pay the costs order. Shortly after his Honour's decision, Ramset served Advanced with statutory demands under section 459E of the Corporations…