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

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

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Case Copied 10 April 1913 5 min read

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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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1913] HCA 23
Decision Date: 10 April 1913

CaseChat Overview and Summary

In an action brought by Marconi's Wireless Telegraph Co Ltd against the Commonwealth for infringement of patent, the High Court had previously made an order for inspection of certain wireless telegraphic apparatus. The Commonwealth sought a stay of proceedings under this order pending an application for special leave to appeal to the Privy Council. The dispute centred on whether such a stay should be granted, given that refusal would render any potential appeal nugatory, while granting it without conditions might cause significant loss to the plaintiffs.

The legal issue before the High Court was whether it possessed the power and, if so, whether it should exercise its discretion to grant a stay of proceedings under its own order, pending an application for special leave to appeal to the Privy Council. This involved balancing the potential for an appeal to become nugatory against the risk of the plaintiffs losing the benefit of their action.

The Court reasoned that while it would not ordinarily grant such an application without very strong and special grounds, this case presented peculiar circumstances. It acknowledged that a refusal of the stay would render the Commonwealth's potential appeal nugatory, while a simple grant could cause the plaintiffs to lose the whole benefit of their action. Applying principles of preserving the rights of parties and balancing convenience, the Court decided to grant the stay. This was conditioned on the Commonwealth undertaking to expedite its application to the Privy Council and to pay such damages, whether legally claimable or not, as the High Court deemed just and fair compensation to the plaintiffs for any disadvantage suffered due to the stay. The Commonwealth was also ordered to pay the costs of the application.

Orders