Siddons Pty Ltd v Stanley Works Pty Ltd

[1991] FCA 137

NOT FOR DISRIBUTION

IN THE PULL COURT OF THE	JUDGMENT NO. )3?.1 .Q........ .
FEDERAL COURT OF AUSTRALIA )	)

VG No. 253 of 1990

VICTORIA DISTRICT REGISTRY )	1
GENERAL DIVISION	1
BETWEEN:	i
i
i

SIDDONS PTY LTD	L
c

Appellant/Cross Respondent i

- and -

THE STANLEY WORKS PTY LTD I

Respondent/Cross Appellant 1 I.

corn:  Wilcox, Burchett and Heerey JJ.

PLACE	:	Melbourne
DATE :	5 April 1991

11 APR 1991

FEDERAL COURT OF

AUSTRALIA

EX TEMPORE REASONS FOR J[JDQ4.ENT

HEEREY J:

After I announced on behalf of the other members of the Full Court and myself the orders which the Full Court by a majority proposed should be made, Dr Jessup QC, on behalf of the respondent, sought a stay of the injunction.

stock.

The ground on which that stay was sought was that apparently the respondent, following upon its success at trial, had invested in substantial inventories of the product the sale of which the Full Court has now held should be restrained, and that, as I apprehend it, there would be heavy costs incurred by the respondent if it were prevented from selling that

The possibility of an application for special leave to appeal to the High Court was mentioned in passing, but as I understand it that is not the primary basis on which the stay is sought.

I raised the question of jurisdiction to grant such a stay since the other members of the court did not come to Melbourne for the handing down of the judgment. It would seem from a decision of Pincus J. in Patten v Minister for Defence (1987) 13 FCR 476, that a single judge, acting under 0.37 r.10, does have jurisdiction to grant such a stay.

However, in the circumstances I think it would not be appropriate for me to exercise such jurisdiction. What is sought is a stay based on a discretionary factor going to the grant of an injunction. No argument was advanced on such a basis at the hearing of this appeal, even though it might have been anticipated that there was a possibility that the appeal would succeed. Nor indeed as I recall it, was there any argument advanced at the hearing of the appeal on discretionary matters at all.

The case put by the respondent at the hearing of the appeal

was simply that the judgment appealed from was correct and	that no injunction should go. In all the circumstances I do
not think I should accede to Dr Jessup's application. His client will, of course, be free to take such further steps in relation to this matter as they may be advised.

I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment of the Honourable Mr Justice Justice Heerey

Counsel for the Appellant:	MS Irene Zeitler
Solicitors for the Appellant:	Freehill Hollingdale & Page
Counsel for the Respondent:	Dr C N Jessup QC with
M r S R Horgan
Solicitors for the Respondent:	Mallesons Stephen Jaques