Marconi's Wireless Telegraph Co Ltd v Commonwealth (No 3)

[1913] HCA 23

16 CLR 384

THE MARCONI'S WIRELESS TELEGRAPH

COMPANY LIMITED

THE COMMONWEALTH Practice-High Court-Stay of proceedings pending appeal to the Privy Council-

In an action against the Commonwealth for infringement of patent the High April 10.

Court had, on the application of the plaintiffs, made an order for inspection against the Commonwealth. A motion for a stay of proceedings under the order, pending an application to the Privy Council for special leave to appeal, was made by the Commonwealth, and the circumstances were such that unless a stay was granted the appeal would be rendered nugatory, and that if it was simply granted the whole benefit of the action might be lost to the plaintiffs.

16 CLR 385

Held, that proceedings should be stayed until the hearing of the applica- tion to the Privy Council, on the Commonwealth undertaking to expedite the application and to pay such damages, whether legally claimable or not, as the High Court or a Justice thereof might think just and fair as compensation to the plaintiffs for any damage they might sustain by reason of the stay. MOTION.

In an action brought by the Marconi's Wireless Telegraph Co. Ltd. against the Commonwealth for infringement of patent, on the application of the plaintiffs an order was on 20th March 1913 made by the High Court for inspection of certain wireless tele- graphic apparatus: Marconi's Wireless Telegraph Co. Ltd. V. Communwealth [No. 2] 1.

A motion was now made on behalf of the Commonwealth for a stay of proceedings under the order of 20th March 1913 pending an application by the Commonwealth for special leave to appeal to the King in Council.

Starke, for the Commonwealth, in support of the motion. Mann, for the plaintiff company, to oppose. The plaintiffs will be damnified by the granting of a stay. Their patents run out in 1914. The practical advantage to them of success in the action will be that they can prevent the Commonwealth from using their system of wireless telegraphy, and damages will not be a full compensation to them. There is no right of appeal the Privy Council, and until the special leave to appeal is granted the order of this Court is effective. The reservation of the right to ask for special leave to appeal to the Privy Council does not impose a duty on this Court to exercise a discretion to say whether an appeal, if successful, should be rendered nugatory.

[ISAACS J. referred to Wilson v. Church [No. 2] 2.] There there was a right of appeal. This Court will not stay proceedings under its order merely because one of the parties wishes to apply for special leave to appeal to the Privy Council. There is no precedent for an application of this kind.

Starke, in reply. The application for a stay must be made to

116 C.L.R., 178. 212 Ch.D., 454, at p. 458. 16 CLR 386

this Court, for the Privy Council will make no order for a stay

until an appeal is pending before them: Quinlan v. Child 1. This Court has an inherent power to stay proceedings under its order, and will do SO if a refusal of a stay will render the pro- posed appeal nugatory, if it is allowed: Emmerson v. Ind, Coope &Co. 2.

[ISAACS J. referred to Siemens v. Heirs of Bufe 3; Nawab [No. 3.]

Sidhee Nuzur Ally Khan v. Rajah Oojoodhyaram Khan 4.]

It is necessary to show special circumstances: The Annot Lyle 5; The Ratata 6. The fact that unless a stay is granted the Commonwealth will be deprived of any benefit to be derived from the appeal is a special circumstance. A stay cannot injure the plaintiffs pecuniarily, and will not interfere with their right to an injunction. The Commonwealth is willing to undertake to pay such damages or loss, whether legally claimable or not, as this Court may hereafter think just or reasonable to compensate the plaintiffs in respect of the order for a stay.

BARTON A.C.J., in delivering the judgment of the Court, said -The Court will not ordinarily grant an application of this kind unless very strong and special grounds are shown. This is a very peculiar case. The conditions are such that, on the one hand, if the stay is granted without more, the whole benefit of the action may be lost to the plaintiffs, while, on the other hand, unless the stay is granted on some fair terms, the defendants' appeal will be nugatory. It really is a question of the preserva- tion of the rights of the parties without disregard of the balance of convenience. Under those circumstances we think that the order we propose to make is a fair one.

Order that the operation of the order of this

Court of 20th March 1913 be suspended until the hearing of the defendants application to the Privy Council for special leave to appeal, on the defendants undertaking to prosecute their appli-

1(1900) A.C., 496, at p. 498. 255 L.J., Ch., 903, at p. 905. 311 Moo. P.C.C., 62. 4L.R. 1 P.C., 8. 511 P.D., 114. 6(1897) P., 118. 16 CLR 387

cation with all reasonable expedition, and also undertaking to pay the plain- tiffs such damages or loss, whether legally claimable or not, as this Court or a Justice thereof may think just and fair as compensation to the plaintiffs for any disdvantage they may sustain by reason of this order. The defendants to pay the costs of this application. Solicitors, for the plaintiffs, Blake &Riggall. Solicitor, for the defendants, Gordon H. Castle, Crown Solicitor for the Commonwealth.

[PRIVY COUNCIL.]

RICKARDS (SINCE DECEASED, NOW REPRE-

SENTED BY LEETE AND OTHERS) LOTHIAN

RESPONDENT. PLAINTIFF,

ON APPEAL FROM THE HIGH COURT OF AUSTRALIA. Negligence - Water supply maintained on premises-Damage caused by escape of

water - Malicious act of third person-Liability of owner.

A person who maintains on his premises a reasonable system for the supply of water for domestic purposes, is only using them in an ordinary and proper manner, and, although he is bound to exercise all reasonable care, he is not responsible for damage caused by the escape of the water due, not to his own default, but to the malicious act of a third person. Present-The Lord Chancellor, Lord Maenaghten, Lord Atkinson, and Lord Moulton.