SociÉTÉ Des Produits NestlÉ SA and Anor v Christian and Anor (No.9)

[2014] FCCA 2523

FEDERAL CIRCUIT COURT OF AUSTRALIA

SOCIÉTÉ DES PRODUITS NESTLÉ SA & ANOR v CHRISTIAN & ANOR (No.9) [2014] FCCA 2523

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.29.12

Société des Produits Nestlé SA & Anor v Christian & Anor (No.5) [2014] FCCA 2234

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: 31 October 2014

Delivered at: Sydney

Delivered on: 31 October 2014

REPRESENTATION

Counsel for the Applicants: Mr B. Mee

Solicitors for the Applicants: Banki Haddock Fiora

First Respondent appeared by telephone

ORDERS

(i)The application for a stay of orders 1, 2 and 3 made on 3 September 2014 and of orders 2, 3(3A), 3(3B), 4, 5, 6 and 7 made on 17 October 2014 is dismissed.

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

(revised from transcript)

1. Before the Court is an application made by the first respondent, Mr Christian, for two orders. The first is an order pursuant to rule 29.12 of the Federal Circuit Court Rules 2001 (Cth) for a stay of execution of orders 1, 2 and 3 – which I made on 3 September 2014 – and orders 2, 3, 4, 5, 6 and 7 – which I made on 17 October 2014.

2. The evidence on which Mr Christian relies for these orders are set out in paragraphs 4 and 5 of an affidavit, which he filed in support of the application, affirmed on 29 October 2014.  Paragraph 4 refers to Mr Christian having been granted leave to appeal by Yates J in the Federal Court of Australia against the orders that I made on 3 September 2014 and 17 October 2014. 

3. Paragraph 5 of Mr Christian’s affidavit is as follows:

   On 17 October 2014, the Court made order 3(c) which I cannot technically comply with because I have since been advised by Shopify, the ecommerce platform used for hosting the A-Sashi Vitamins online store, that it is unable to block IP addresses’ in Australia from accessing the A-Sashi Store; annexed to this affidavit and marked “B” is email communication between Shopify and myself.  Shopify is a global market leader ecommerce platform which hosts over 100,000 online stores and has received US$122M in funding to date.  In attempt to comply with order 3(c), the A-Sashi Vitamins store settings have already been set to restrict the sale of goods to Australia.

4. It will be seen that paragraph 5 deals only with order 3(3C) of the orders I made on 17 October 2014.  I have already this morning made an order extending the time for complying with that order and directions for the filing of evidence for the determination of whether it is technically feasible for Mr Christian to comply with it.  There is, therefore, nothing further I need to say about that particular order and any application to stay its operation. The only other ground relied upon by Mr Christian is that set out in paragraph 4, which refers to, as I note above, Mr Christian having been granted leave to appeal against the orders I made on 3 September and 17 October 2014.

5. The applicants, on the other hand, submit that the leave to appeal was not opposed by Nestlé; that, further, the grounds of appeal on which leave was granted are weak and that, in any event, nothing should be inferred from the fact that leave has been granted as to the strength or otherwise of the grounds of appeal.

6. I have previously discussed the principles that should guide me when considering an application to grant a stay and I did that in Société des Produits Nestlé SA & Anor v Christian & Anor (No.5)[1] I will not repeat here what I there said other than this. To grant a stay, I must be satisfied that Mr Christian has made an appropriate case for a stay. Relevant to whether Mr Christian has made such a case is whether he has reasonable grounds of appeal; whether refusing to grant a stay will deny Mr Christian the fruits of the appeal if the appeal succeeds; and whether or not granting a stay will prevent Mr Christian from being restored substantially to his former position if the judgment is executed against Mr Christian. 

   [1] [2014] FCCA 2234

7. It is not appropriate for me – having regard to the other matters I will consider in a moment – to express any opinion on Mr Christian’s prospects of Mr Christian succeeding on his appeal, or the strength or otherwise of the grounds of appeal for which leave has been granted.  However, in my opinion, Mr Christian – even if I assume he has reasonable grounds for appeal – has not made out an appropriate case for the stay of the orders.  The fact that leave to appeal has been granted by itself has little weight.  Mr Christian has put on no evidence of the detriment he will suffer if he succeeds in the appeal but, in the meantime, the orders that I made remain in force.

8. There is nothing before me which indicates Mr Christian’s not obtaining a stay will deny Mr Christian the fruits of the appeal if he succeeds; and there is nothing before me to show that if he succeeds but no stay is granted Mr Christian will be unable to be restored substantially to his former position. 

9. For those reasons I propose to dismiss the application for a stay of the orders. 

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  4 November 2014