Martin & Pleasance Pty Ltd v A Nelson & Co Limited

Martin & Pleasance Pty Ltd, Aloe Vera Industries Pty Ltd and Martin & Pleasance Wholesale Pty Ltd (collectively referred to as Martin & Pleasance) sought to appeal against an interlocutory judgment which restrained them from marketing, promoting, or supplying products using the word “RestQ” and using the packaging which they had been using in respect of those products. The applicants sought a stay of the interlocutory orders pending the hearing and determination of their proposed application for leave to appeal. The case was heard by Flick J, who had previously made the interlocutory orders, and subsequently by the Full Court.

The legal issues the court was required to decide were whether the appeal would be rendered nugatory without a stay, whether the balance of harm to the applicant outweighed the harm to the respondent in favour of a stay, whether the leave application should be heard concurrently with or immediately before the appeal, whether the hearing of the leave application and appeal should be expedited, and whether the applicant had an arguable case. The court also had to consider the relevant principles regarding whether a stay of the judgment should be granted.

The Full Court found that Martin & Pleasance had demonstrated that this was an appropriate case for a stay, and that there was a sound reason or proper basis for a stay in the particular circumstances of the case. The court concluded that Martin & Pleasance had at least an arguable case for the grant of leave to appeal, and that the decision of the primary judge was attended by sufficient doubt to warrant appellate attention. The court also found that there was a real likelihood that a successful appeal would be rendered nugatory, and that there was a real risk that it would not be possible for Martin & Pleasance to be restored substantially to their former position if Nelson was ultimately unsuccessful at the final hearing. The Full Court granted the stay and made orders for the hearing of the application for leave to appeal, and the appeal if leave was granted, to be expedited.

The final orders made by the Full Court were that the application for leave to appeal be heard concurrently with or immediately before the appeal sought in that application, that the hearing of the application for leave to appeal be expedited and listed on either 4, 5 or 6 May 2021 before the Full Court, that the orders made on 17 March 2021 by Flick J be stayed up to 4.15pm on the day the application for leave to appeal and the appeal, if leave is granted, are heard, that the confidential annexures and exhibits filed 23 March 2021 be treated as confidential for the purposes of r 2.32 of the Federal Court Rules 2011, and that the costs of the interlocutory application filed 23 March 2021 be reserved. The applicants undertook to keep full and accurate records of all sales of the RestQ products during the period of the stay.