SOCIÉTÉ Des Produits NestlÉ SA v Christian (No.15)

[2015] FCCA 368

FEDERAL CIRCUIT COURT OF AUSTRALIA

SOCIÉTÉ DES PRODUITS NESTLÉ SA & ORS v CHRISTIAN (No.15) [2015] FCCA 368

Catchwords:

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

First Applicant: SOCIÉTÉ DES PRODUITS NESTLÉ SA

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

Third Applicant: PREMIER NUTRITION CORPORATION

Fourth Applicant: POST FOODS AUSTRALIA PTY LIMITED

Respondent: JAMES WILLIAM  CHRISTIAN

File Number: SYG 3214 of 2013

Judgment of: Judge Manousaridis

Hearing date: 13 February 2015

Date of Last Submission: 13 February 2015

Delivered at: Sydney

Delivered on: 13 February 2015

REPRESENTATION

Counsel for the Applicants:

Solicitors for the Applicants:

Respondent appeared by telephone.

Ms J.M. Beaumont

Banki Haddock Fiora

ORDERS

1. The application in a case filed on 19 December 2014 is dismissed.

2. The respondent pay the applicant’s costs.

3. The respondent may make no further application in this proceeding without the prior leave of the court.

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

PREMIER NUTRITION CORPORATION

Third Applicant

POST FOODS AUSTRALIA PTY LIMITED

Fourth Applicant

And

JAME WILLIAM CHRISTIAN

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The respondent Mr Christian applies for an order that order 5(a) of the orders I made on 3 September 2014, as varied by orders I made on 9 October and 4 November 2014, be stayed until 60 days after the date the appeal Mr Christian has lodged with the Federal Court against orders I made in these proceedings is determined. 

2. Order 5(a) provided that Mr Christian file an application in a case for leave to file a cross-claim by no later than 15 October 2014.  On 9 October 2014 I varied order 5(a) so as to allow Mr Christian to file the application in a case for leave to file a cross-claim by 5 November 2014.  On 4 November 2014 I again varied order 5(a) so as to permit Mr Christian to file an application in a case for leave to file a cross-claim by 27 February 2015.  On 4 November, however, I also ordered as follows:

   Any application to further vary order 5(a) of the orders must be supported by grounds stated in an affidavit made by a legal practitioner whom the first respondent has engaged to prepare a cross-claim.

3. Mr Christian’s intention in seeking a stay is to obtain time beyond 27 February 2015 by which to file an application for leave to file a cross-claim.  Even though that is Mr Christian’s intention, he submits that he is not seeking a variation of order 5(a).  He is seeking a stay, which, he submits, is different. 

4. It is true that a stay of an order is different from a variation of an order.  But even if I were to grant a stay, that would not allow Mr Christian time beyond 27 February 2015 to file an application for leave to file a cross-claim. The order that currently permits Mr Christian time to file an application by such time will be spent on 27 February 2015 and, after that day, there will remain no order of this court pursuant to which Mr Christian could file an application for leave to file a cross-claim.  It would therefore be futile for this court to order a stay and, for that reason, I will not grant it. 

5. Even if, however, there would be some utility in granting Mr Christian a stay of order 5(a), it is necessary to consider the grounds on which he seeks it. There are two sets of grounds.  One is set out in his affidavit of 19 December 2014.  In that affidavit Mr Christian says that the ground on which he seeks the stay is that he claims to be prejudiced because of orders I made on 19 December 2014 dismissing an application Mr Christian made for discovery and the administration of interrogatories.  In my reasons for judgment of 19 December 2014, I concluded Mr Christian is not entitled to interrogatories or discovery.  Given that conclusion, Mr Christian’s not being able to administer interrogatories and obtain discovery cannot constitute a ground for obtaining the stay which he seeks.   

6. The second ground on which he relies for the stay are those he stated at the hearing today.  He says that his lawyers have stated that they are too busy to assist him.  Mr Christian asserts this reflects pressure brought to bear on his lawyers by the applicant.  There is nothing to support that assertion and, for that reason, the making of the assertion is scandalous. 

7. In any event, I first granted Mr Christian permission to file an application for leave to file a cross-claim on 3 September 2014.  I initially allowed Mr Christian to do so by 15 October 2014.  That time has been extended to 27 February 2015.  That is more than sufficient time for Mr Christian to have engaged lawyers and obtain legal advice about whether he has a viable cross-claim against the applicant and other parties and to draft such cross-claim.  There is no reason that I can see that would justify me granting Mr Christian any further time to apply for leave to file a cross-claim. 

8. Counsel for the applicant submitted that, in light of the repeated applications Mr Christian has made in these proceedings, that I should order that he make no further applications without the leave of the court.  I propose to make such an order for the reason that Mr Christian has made repeated applications, often seeking to re-agitate issues that have been decided against him.  In a very real sense, this application that I am hearing today is an example of that.  It is an attempt by Mr Christian to re-agitate an application for leave to administer interrogatories or to issue subpoenas or some such process, which I have already dealt with in at least two other reasons for judgment.

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

Associate: 

Date:  20 February 2015