SOCIÉTÉ Des Produits NestlÉ SA and Anor v Christian and Anor (No.5)

[2014] FCCA 2234

FEDERAL CIRCUIT COURT OF AUSTRALIA

SOCIÉTÉ DES PRODUITS NESTLÉ SA & ANOR v CHRISTIAN & ANOR (No.5) [2014] FCCA 2234

Catchwords:
PRACTICE AND PROCEDURE – Application for a stay pending determination of appeal – whether it is an appropriate case for the granting of a stay – stay refused.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.29.04

Cellante and Ors v G Kallis Industries Pty Ltd [1991] 2 VR 653
Maher v Commonwealth Bank of Australia [2008] VSCA 122
Powerflex Services Pty Ltdv Data Access Corp (1996) 67 FCR 65
Re Middle Harbour Investments Ltd (In liq) (unreported, Court of Appeal, NSW, 15 December 1976)
Société Des Produits Nestlé SA & Anor v Christian & Anor(No.4) [2014] FCCA 2025

First Applicant: SOCIÉTÉ DES PRODUITS NESTLÉ SA

Second Applicant: NESTLÉ AUSTRALIA LTD
(ACN 000 011 316)

First Respondent: JAMES WILLIAM CHRISTIAN

Second Respondent: MARK CHARLES CHRISTIAN

File Number: SYG 3214 of 2013

Judgment of: Judge Manousaridis

Hearing date: 25 September 2014

Delivered at: Sydney

Delivered on: 26 September 2014

REPRESENTATION

Counsel for the Applicants: Ms J. Beaumont

Solicitors for the Applicants:

First Respondent appeared by telephone.

Banki Haddock Fiora

ORDERS

1. The application for a stay is dismissed.

2. The first respondent pay the applicants’ costs of the application.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3214 of 2013

SOCIÉTÉ DES PRODUITS NESTLÉ SA

First Applicant

NESTLÉ AUSTRALIA LTD (ACN 000 011 316)

Second Applicant

And

JAMES WILLIAM  CHRISTIAN

First Respondent

MARK CHARLES CHRISTIAN

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. On 22 September 2014 the respondent, Mr Christian, filed an application in a case seeking an order that the orders I made on 3 September 2014 in this matter[1] be stayed until his appeal from those orders is determined.

   [1] Société Des Produits Nestlé SA & Anor v Christian & Anor(No.4) [2014] FCCA 2025

2. The hearing of the application came before me at 2.15 pm on 25 September 2014. Mr Christian relied on an affidavit which he affirmed on 21 September 2014.

Principles

1. This Court has power under r.29.04 of the Federal Circuit Court Rules 2001 (Cth) to stay a judgment or order of the Court.

2. The principles on which that power is exercised are well-settled and, for the purpose of this application, may be taken to be as follows:[2]

   Where an application is made for a stay of proceedings, it is necessary that the applicant demonstrate an appropriate case. Prima facie, a successful party is entitled to the benefit of the judgment obtained by him and is entitled to commence with the presumption that the judgment is correct. These are not matters of rigid principle and a court asked to grant a stay will consider each case upon its merits, but where an applicant for a stay has not demonstrated an appropriate case but has left the situation in the state of speculation or of mere argument, weight must be given to the fact that the judgment below has been in favour of the other party.

   [2] Re Middle Harbour Investments Ltd (In liq) (unreported, Court of Appeal, NSW, 15 December 1976) (Mahoney JA) quoted with approval by the Full Court of the Federal Court of Australia in Powerflex Services Pty Ltdv Data Access Corp (1996) 67 FCR 65 at page 66

3. A stay should not be granted unless there is at least an arguable ground of appeal.[3] Factors otherwise relevant to whether a stay should be granted include whether refusing to grant a stay will deny the applicant the fruits of the appeal if the appeal succeeds,[4] and whether not granting the stay will prevent the successful appellant from being restored substantially to his former position if the judgment is executed against the successful appellant.[5]

   [3] Maher v Commonwealth Bank of Australia [2008] VSCA 122 at [27]

   [4] Maher v Commonwealth Bank of Australia [2008] VSCA 122 at [24]

   [5] Maher v Commonwealth Bank of Australia [2008] VSCA 122 at [25], citing Cellante and Ors v G Kallis Industries Pty Ltd [1991] 2 VR 653 at 657 (Young CJ).

Matters on which Mr Christian relies

1. The only grounds on which Mr Christian relies in his affidavit is that he has a right to appeal against the orders I made on 3 September 2014, and that he has filed an application to the Federal Court of Australia for leave to appeal against those orders. Mr Christian notes that one of the claims for relief he has included in his application to the Federal Court is for a stay of execution of proceedings until his appeal is heard. Mr Christian would not agree to my reading the proposed grounds of appeal against my orders.

2. In these circumstances, Mr Christian has not put before the Court any material on the basis of which it could be concluded that there exists an appropriate case for this Court to grant a stay of the orders I made on 3 September 2014. The application for a stay, therefore, must be dismissed.

Disposition

1. I propose to order that the application in a case for a stay be dismissed, and that Mr Christian pay the applicants’ costs.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  26 September 2014