Chan & Naylor Norwest Pty Ltd v CNIP Pty Ltd

REASONS FOR JUDGMENT 1 Before me today was an application on behalf of the applicants to extend the interim stay of orders 1 to 8 made by Perram J on 7 October 2011 pending the hearing of an application for leave to appeal. In form, those orders by Perram J were interlocutory, at least on the basis that order 2 leaves damages to be assessed. It was common ground between the parties that Perram J's orders were interlocutory. 2 This then raised the question of when and how to deal with the question of leave to appeal. The parties seemed to contemplate that a separate hearing of the leave question would be necessary, but after obtaining instructions the parties sensibly agreed that I should deal also today with that question which arises under s 25(2) of the Federal Court of Australia Act 1976 (Cth). 3 My view is that this is an appropriate case for me to direct, under s 25(2)(e) of the Federal Court of Australia Act, that the application for leave to appeal be heard by a Full Court. 4 The basis of my conclusion is first that the parties accepted that there was a substantial overlap between the matters that need to be agitated on the leave question and the matters in the substance of the appeal. Another consideration is that the orders of Perram J are at the substantive end of the spectrum, and do not deal with a matter of mere practice and procedure. Although interlocutory in form, they do affect the substantive rights of the applicants since the defences were struck out and, subject to the assessment of damages, judgment was given for the present respondents. Another consideration is that there seems to me to be no appeal from an order of a single judge dealing with the leave to appeal question. So, in those circumstances and for those reasons, I direct under s 25(2)(e) that the application for leave to appeal be heard by a Full Court. 5 I add that, subject to any contrary direction of the Full Court, the application for leave to appeal be heard concurrently with, or alternatively, immediately before, any appeal. That course, would give the Full Court maximum flexibility in terms of how the justices constituting the Full Court would wish to proceed. 6 Related to the matter that I have just touched on, and inquiries having been made during a short adjournment, I direct that the matter be listed for hearing in the February 2012 Full Court period. I also direct the parties to contact Ms Angela Josan, who is the National Appeals Registrar, in Melbourne, as soon as possible with estimated hearing times, details of counsel, dates available for settlement of the appeal book and to deal with any other matters that Ms Josan considers are necessary for the prompt preparation for the hearing of any appeal in February. 7 On the application for a further stay, that is, an extension of the temporary stay of orders 1 to 8 of Perram J, there is before me a draft notice of appeal covering all grounds of Perram J's judgment. Also there was read on behalf of the applicants the affidavit of Salvatore Arcuri and there was read on behalf of the respondents the affidavit of Kenneth William Raiss sworn 19 October 2011. 8 As to the stay question, I refer to rule 36.08 of the Federal Court Rules 2011, which provides that an appeal does not operate as a stay of execution, or a stay of any proceedings under the judgment subject to the appeal, but an appellant or interested person may apply to the court for an order to stay the execution of the proceeding until the appeal is heard and determined. The question is whether there is a reason to make an order in the applicant's favour. 9 Mr Foley, for the applicants, submitted that the prejudice of not making a stay order, or not continuing the stay, was obvious. Mr Lever SC for the respondents submitted that there was prejudice to his client in the applicants continuing to use the name, "Chan & Naylor". He referred to evidence constituted by emails annexed to the affidavit of Mr Raiss. 10 I am not persuaded that there is a reason to make an order in the applicants' favour under rule 36.08. In my view, there is not sufficient evidence before me, taking into account the contents of Mr Arcuri's affidavit, to warrant a stay of orders 1 to 8 of the orders made by Perram J. I therefore refuse to extend that stay past today, which is when the interim stay orders expire. 11 As to the costs of today, it was common ground that the costs be costs in the appeal, and I so order. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Robertson.