McCallum and Co Pty Ltd v Allen Manufacturing Co Pty Ltd

[2002] FCA 673

FEDERAL COURT OF AUSTRALIA

McCallum & Co Pty Ltd v Allen Manufacturing Co Pty Ltd
[2002] FCA 673

McCALLUM & CO PTY LIMITED v ALLEN MANUFACTURING CO PTY LIMITED and ALAN GEORGE HARPER
N 1059 OF 1999

GYLES J
SYDNEY

13 MAY 2002

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1059 OF 1999

BETWEEN:

McCALLUM & CO PTY LIMITED
APPLICANT

AND:

ALLEN MANUFACTURING CO PTY LIMITED
FIRST RESPONDENT

ALAN GEORGE HARPER
SECOND RESPONDENT

JUDGE:

GYLES J

DATE OF ORDER:

13 MAY 2002

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.        The notice of motion is dismissed.

2.        The applicant on the motion pay the costs of the respondent to the motion.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1059 OF 1999

BETWEEN:

McCALLUM & CO PTY LIMITED
APPLICANT

AND:

ALLEN MANUFACTURING CO PTY LIMITED
FIRST RESPONDENT

ALAN GEORGE HARPER
SECOND RESPONDENT

JUDGE:	GYLES J
DATE:	13 MAY 2002
PLACE:	SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

1. This is a notice of motion for a stay of proceedings brought by Alan George Harper (“Harper”), an unsuccessful respondent.  The orders sought to be stayed encompass injunctions to restrain breach of a registered design and ancillary orders.  An appeal to the Full Court was unsuccessful.  The Full Court decision was delivered on 20 December 2001.  No application for special leave to the High Court of Australia has been made, and although Harper says he intends to appeal, no steps to do so have been taken by him.

2. So far as liability for money is concerned, there are outstanding costs orders, but the taxation process is not yet complete and so far as any claims for damages are concerned, there has been no active pursuit of them since the Full Court decision.  It seems to me that Harper has totally failed to advance any case at all for a stay of the orders of the Court at this time.  As I said to him during the course of argument, it may be that if he succeeds in persuading the High Court to extend time for any special leave application and if there was an order of this Court which directly caused him to pay money, such as a certificate of taxation, then he may theoretically have a basis for a stay.  That has not occurred, and in my opinion, this application is clearly premature and it is dismissed.

3. I order that Harper pay the costs of McCallum & Co Pty Limited, the respondent to the motion.

I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.

Associate:

Dated:             29 May 2002

The Applicant on the motion appeared in person
Counsel for the Respondent to the motion:	J Baird
Solicitor for the Respondent to the motion:	PriceWaterhouseCoopers
Date of Hearing:	13 May 2002
Date of Judgment:	13 May 2002