Martin & Pleasance Pty Ltd v A Nelson & Co Limited

Counsel for the Respondents: Mr M Hall SC with Ms A Campbell

ORDERS NSD 237 of 2021 BETWEEN: MARTIN & PLEASANCE PTY LTD ACN 006 935 888 First Applicant

ALOE VERA INDUSTRIES PTY LTD ACN 063 710 832 Second Applicant

MARTIN & PLEASANCE WHOLESALE PTY LTD Third Applicant

AND: A NELSON & CO LTD First Respondent

BACH FLOWER REMEDIES LTD Second Respondent

order made by: WIGNEY J DATE OF ORDER: 30 March 2021

1. The application for leave to appeal filed 23 March 2021 be heard concurrently with, or immediately before, the appeal sought in that application.
2. The hearing of the application for leave to appeal be expedited and listed on either 4, 5 or 6 May 2021 before the Full Court, as advised by the Court, with an estimated duration of one day.
3. Upon the undertaking referred to in the notation following these orders, order 2 of the orders made on 17 March 2021 by Flick J in NSD 154 of 2021 be stayed up to 4.15pm on the day the application for leave to appeal and the appeal, if leave is granted, are heard.
4. The confidential annexures and exhibits filed 23 March 2021, DGF-2 and RH-2, be treated as confidential for the purposes of r 2.32 of the Federal Court Rules 2011 (Cth).
5. The costs of the interlocutory application filed 23 March 2021 be reserved. THE COURT NOTES THAT:
6. The applicants undertake to the Court that during the period of the stay of the orders referred to in order 3 above, they will keep full and accurate records of all sales of the RestQ products (as defined in [29] of the Statement of Claim filed on 2 March 2021 in the NSD 154 of 2021 proceeding). Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

WIGNEY J: 1 The applicants in this matter sought an extension of a stay of interlocutory orders made by a judge of this Court. Those orders had the effect of restraining the applicants from marketing, promoting or supplying certain healthcare products using a particular name and in packaging that was said to be deceptively similar to a brand name and packaging used by the respondents to market, promote or sell their products. A stay of the interlocutory orders was sought pending the hearing and determination of an application for leave to appeal or, if leave to appeal was to be granted, until the determination of the appeal. The applicants also applied for orders the effect of which was to provide for the application for leave to appeal to be heard concurrently with, or immediately before, the appeal which was the subject of the leave application, and for the hearing of the leave application and appeal to be expedited. 2 On 30 March 2021, I made the orders sought by the applicants. These are my reasons for so doing.

BACKGROUND 3 The applicants, Martin & Pleasance Pty Ltd, Aloe Vera Industries Pty Ltd and Martin & Pleasance Wholesale Pty Ltd (collectively referred to as Martin & Pleasance) are companies that are involved in the manufacture, marketing, promotion and supply of healthcare products that are said to relieve sleeplessness. Those products are promoted, marketed and supplied in packaging which utilises the name or mark "RestQ". 4 Until fairly recent times, Martin & Pleasance was the exclusive Australian distributor of similar healthcare products which were also said to relieve sleeplessness. Those products were manufactured overseas and exported to Australia by the respondents, A Nelson & Co Limited and Bach Flower Remedies Limited (collectively referred to as Nelson). Nelson's products were promoted, marketed and supplied in packaging which utilised the name or mark "Rescue". 5 On 2 March 2021, Nelson commenced a proceeding in this Court in which it alleged, amongst other things, that Martin & Pleasance had infringed its Rescue trademark, had passed off its products as Nelson's products and had engaged in misleading and deceptive conduct contrary to s 18 and s 29(1)(a), (g) and (h) of the Australian Consumer Law (Sch 2 to the Competition and Consumer Act 2010 (Cth)). The originating application filed by Nelson also sought interlocutory relief restraining Martin & Pleasance from marketing, promoting or supplying its product in the RestQ packaging. That application for interlocutory relief was heard by the primary judge, sitting as duty judge, on 10 March 2021. 6 On 17 March 2021, the primary judge delivered a judgment and made orders which restrained Martin & Pleasance from marketing, promoting and supplying products using the word RestQ and using the packaging which it had been using in respect of those products. The primary judge found that Nelson had established a prima facie case that Martin & Pleasance had committed the tort of passing off and had engaged in misleading and deceptive conduct contrary to s 18 and s 29(1)(a), (g) and (h) of the Consumer Law: A Nelson & Co Limited v Martin & Pleasance Pty Limited [2021] FCA 228 (Interlocutory Judgment) at [9]. His Honour did not make any finding concerning Nelson's case that its trademark had been infringed. The primary judge also concluded that the balance of convenience militated towards granting Nelson the interlocutory relief it sought: Interlocutory Judgment at [9]. 7 Later that day, Martin & Pleasance made an application to the primary judge for a stay of the interlocutory orders pending the hearing and determination of its proposed application for leave to appeal. That stay application was heard the following day. The primary judge refused to stay the orders up to the time an application for leave to appeal was heard and determined, but stayed the orders for seven days; that is until 4.00 pm on 25 March 2021: A Nelson & Co Limited v Martin & Pleasance Pty Limited (No 2) [2021] FCA 242 (Stay Judgment) at [19]-[23]. 8 In refusing to stay the orders up to the time of the determination of the application for leave to appeal, the primary judge found that none of the proposed grounds of appeal which had been articulated by Martin & Pleasance "provide[d] any reason to depart from or reverse any of the conclusions previously reached" and that there were at least some "difficulties" which would confront Martin & Pleasance on an application for leave to appeal: Stay Judgment at [13], [14]. His Honour noted, however, that his observations in that regard did not amount to a conclusion that the proposed grounds of appeal "may not expose some error of principle which may have some prospects of success, if leave to appeal were granted": Stay Judgment at [14]. His Honour ultimately concluded that Martin & Pleasance "should not be shut out from seeking leave to appeal and persuading a different Judge that there has been some error of principle in granting interlocutory relief": Stay Judgment at [22]. 9 The primary judge made two other relevant findings in concluding that a stay should be granted, albeit a stay for only seven days. 10 First, his Honour concluded that there was a real likelihood that a successful appeal would be rendered nugatory. That was because there was, according to his Honour, a real likelihood that Martin & Pleasance "may be forced in the exercise of their commercial judgment to rebadge their products pending the resolution of [Nelson's] claims on a final basis, and thereby being shut out from the prospect of re-entering the market using their existing RestQ labelling in the event that their claims ultimately prevail and those of [Nelson] fail": Stay Judgment at [19] (first dot point). His Honour had earlier noted (at [6]) that it had been held in Australian Competition and Consumer Commission v BMW (Australia) Limited (No 2) [2003] FCA 864 (ACCC v BMW) at [5] that the "general rule is that a stay will be granted where there is a likelihood that a successful appeal will be rendered nugatory". 11 Second, the primary judge concluded that there was a real risk that it would not be possible for Martin & Pleasance to be restored substantially to their former position if Nelson was ultimately unsuccessful at the final hearing. His Honour reasoned that the absence of Martin & Pleasance's RestQ products from the market during the period before the final hearing and judgment would preclude them from "regaining the position in the market that they now have": Stay Judgment at [19] (second dot point). His Honour had earlier noted (at [6]) that it had been held in Nichol v Discovery Africa Limited [2016] FCA 254 at [7] that the test for determining whether a stay should be granted pending appeal "may be satisfied where there is a real risk that it will not be possible for a successful appellant to be restored substantially to its former position if the judgment is executed". 12 On 23 March 2021, Martin & Pleasance filed an application for leave to appeal the Interlocutory Judgment. It also filed an Interlocutory Application (the Stay Application) which sought the following orders: 1. The application for leave to appeal filed on 23 March 2021 (Application for Leave) be heard concurrently with, or alternatively immediately before, the appeal sought in that application (Appeal). 2. The hearing of the Application for Leave and the Appeal be expedited, and listed on a date convenient to the Court and the parties with an estimated duration of 1 day. 3. The stay of order 2 of the orders made on 17 March 2021 in NSD 154 of 2021 (154 Proceeding), as granted by order 3 of the orders made on 18 March 2021, be extended until the later of: (a) the refusal of the Application for Leave; or (b) if the Application for Leave is allowed, any decision in the Appeal, (Extended Stay Period) subject to the Applicants undertaking to the Court to keep full and accurate records of all sales of the RestQ products (as defined in paragraph 29 of the Statement of Claim filed on 2 March 2021 in the 154 Proceeding) during the Extended Stay Period. 13 The Stay Application was supported by an affidavit sworn by Martin & Pleasance's solicitor, Mr David Fixler and affidavits affirmed by the managing director of Martin & Pleasance Pty Ltd and the sole director of the second and third applicants, Mr Richard Holyman. Mr Fixler's affidavit annexed or exhibited three lever-arch folders full of documents which essentially comprised the evidence that had been before the primary judge, together with copies of some of the written submissions that were relied on before the primary judge, the transcript of the hearing of the application for interlocutory relief and both the Interlocutory Judgment and the Stay Judgment. Mr Holyman's affidavits detailed what was said to be the "significant and irreparable harm" that Martin & Pleasance would suffer if the short stay granted by the primary judge was not extended pending the hearing of the application for leave to appeal and appeal. 14 The Stay Application initially came on for hearing before me as duty judge on 24 March 2021, the day before the short stay granted by the primary judge was due to expire. After briefly hearing from the parties, I adjourned the Stay Application to 30 March 2021 for further hearing and extended the stay until 5.00 pm on 30 March 2021 subject to further order. The reason that the short adjournment was considered to be necessary or desirable was so I could ascertain in the interim whether, if I considered it appropriate to order that the application for leave to appeal be heard concurrently with, or immediately before, the appeal sought in that application, and that an order expediting that hearing was warranted, it would be possible to convene a Full Court to hear the leave application and potential appeal in either late April or early May 2021. If an expedited leave application and a potential appeal was able to be heard by late April or early May, any extension of the stay would be for only about four or five weeks. The potential length of any extension of the stay was likely to be an important consideration in determining whether the extension should be granted in the exercise of the Court's discretion. 15 As events transpired, it was ascertained that it would be possible to convene a Full Court to hear any expedited hearing of the application for leave to appeal and appeal, if leave were granted, in the first week of May 2021. 16 It is appropriate to first consider whether an order should be made to the effect that the application for leave to appeal be heard concurrently with, or immediately before, the appeal sought in that application and whether, if such an order was made, the hearing of the application for leave to appeal and potential appeal should be expedited. The question whether a further stay should be granted, or whether there should be an extension of the existing stay, can then be considered having regard to, amongst other things, the likely length of the stay.

HEARING OF THE LEAVE APPLICATION AND EXPEDITION 17 Nelson did not oppose an order expediting the hearing of the application for leave to appeal, but only if the Court decided to extend the existing stay or grant a further stay. Nelson was neutral as to whether the application for leave to appeal should be heard by the Full Court together with the appeal, but only if the Court did not grant or extend the stay. Its position was that, if the Court decided to extend or grant a further stay, this was a case where the application for leave to appeal should be heard separately by a single judge so as to minimise the length of the stay. Nelson submitted, in that context, that s 25(2) of the Federal Court of Australia Act 1976 (Cth) (FCA Act) created a presumption in favour of applications for leave to appeal being heard separately by a single judge and that such a hearing could take place in the very near future and thereby effectively reduce the period of the stay: see Oswal v Burrup Fertilisers Pty Ltd (recs and mgrs apptd) [2011] FCA 536 at [12]-[16]. 18 An application for leave to appeal must be heard and determined by a single judge of the Court unless a Judge directs that the application be heard and determined by a Full Court: s 25(2)(a) and (e) of the FCA Act. The discretion in s 25(2)(e) to direct that an application for leave to appeal be heard and determined by a Full Court must be exercised in a way that best promotes the overarching purpose of the civil practice and procedure provisions, which is to facilitate the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible: s 37M(1) and (3) of the FCA Act. 19 While the circumstances in which it may be appropriate to order that an application for leave to appeal be heard and determined by a Full Court are not confined or circumscribed, such an order would generally be appropriate where there is a substantial overlap between the issues that arise in respect of the question of leave and the appeal itself, such as where there is a substantial and significant dispute as to whether the judgment of the primary judge is "attended by sufficient doubt" to warrant the grant of leave and where the refusal of leave would lead to substantial and significant injustice or consequences for the applicant: Oswal at [16]-[17], citing Décor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 397; Ensham Resources Pty Limited v AIOI Insurance Company Limited [2012] FCA 822 at [9]; Fair Work Ombudsman v Toyota Material Handling (NSW) Pty Ltd (2012) 237 FCR 454; [2012] FCA 347 at [9]-[10]. Such an order may also be warranted where some degree of expedition is appropriate. 20 This is a case where it is appropriate in all the circumstances for the discretion under s 25(2)(e) of the FCA Act to be exercised. Nelson's application for interlocutory relief before the primary judge was hard-fought, involved relatively voluminous evidence for such an interlocutory application and raised significant issues. The application for leave to appeal by Martin & Pleasance is also undoubtedly bona fide and raises issues of substance concerning the judgment of the primary judge and the consequences that would result from the refusal of leave. Resolution of those issues would involve delving into the relatively voluminous evidence that was before the primary judge and hearing detailed submissions. It makes sense for the Court to be required to delve into the evidence and hear submissions concerning the merits of the proposed appeal and the consequences of the refusal of leave on only one occasion. This is certainly not a case where the merits of the proposed appeal are clear-cut or straightforward, or where the merits can be dealt with shortly and without hearing detailed submissions. That became readily apparent during the hearing of this application. Both parties addressed the proposed grounds of appeal in significant detail. The hearing of this application took an entire day. 21 There could also be no doubt that the orders made by the primary judge are likely to have significant and substantial practical consequences for Martin & Pleasance and that much rides on the question of leave to appeal. So much so is apparent from the findings made by the primary judge in both the Interlocutory Judgment and the Stay Judgment. If leave to appeal is not granted, Nelson's application for final relief may not be heard for many months. The evidence revealed that if that were the case, Martin & Pleasance would effectively be required to "rebrand" and repackage its product. The result would be that the grant of the interlocutory relief would be "tantamount to final relief": Interlocutory Judgment at [58] referring to Collins House Pty Ltd v Golden Age Sunrise Development Pty Ltd (2015) 114 IPR 1; [2015] FCA 724 at [105] and Samsung Electronics Co Ltd v Apple Inc (2011) 217 FCR 238; [2011] FCAFC 156 at [31]; see also Stay Judgment at [19]. 22 That consideration also weighs in favour of an order expediting the hearing of the application for leave to appeal and appeal, if leave were to be granted. It is common ground that a concurrent hearing of the application for leave to appeal and any appeal would take one day and that the parties would be ready for a hearing if it was able to be listed in late April or early May 2021. As noted earlier, it is likely that a Full Court could be convened within that timeframe. 23 It follows that orders should be made in accordance with orders 1 and 2 of the Stay Application. This is a case where it is appropriate for the question of leave to appeal to be considered and determined by a Full Court, either concurrently with or immediately before the hearing of the appeal, if leave to appeal were to be granted. It is also appropriate for an order to be made expediting the hearing of the application for leave to appeal and the potential appeal. 24 In these circumstances, the application for an extension of the stay should be considered and determined on the basis that the duration of any further stay may be as little as four to six weeks.

Stay - relevant principles 25 A party bound by a judgment or order may, upon the filing of an appeal, apply to the Court for an order that the judgment or order be stayed: s 29 of the FCA Act and r 36.08(2) of the Federal Court Rules 2011 (Cth). A party may also apply for a stay of a judgment or order in circumstances where only an application for leave to appeal has been filed: r 41.03 of the Rules. 26 The applicable principles in relation to the granting of a stay pending an application for leave to appeal, or an appeal, are well-settled and were essentially not in dispute. They were identified by the primary judge in the Stay Judgment at [5]-[6] by reference to a number of authorities. Neither party suggested that his Honour's summary of the relevant principles was incorrect or inadequate in any respect. 27 The Court has a broad discretion whether or not to grant a stay pending the determination of an application for leave to appeal or an appeal. The leading authorities in relation to the circumstances in which that discretion may be exercised and a stay may be granted include Powerflex Services Pty Ltd v Data Access Corporation (1996) 67 FCR 65 at 66; Phillip Morris (Australia) Limited v Nixon [1999] FCA 1281 at [17]; and ACCC v BMW. The principles that can be derived from those authorities may be summarised as follows. 28 First, it is not necessary for an applicant for a stay to demonstrate special or exceptional circumstances, though the applicant must establish a sufficient reason or a proper basis for the exercise of the discretion in their favour, or that their case is an appropriate case for a stay: Powerflex at 66. 29 Second, in determining whether to exercise the discretion to grant a stay, the Court must consider and weigh various considerations. While it is not possible to exhaustively state those considerations, they include: the balance of convenience; the competing rights of the parties; and the extent to which the grant or withholding of a stay will result in prejudice being suffered by the parties or would be fair: Phillip Morris at [17], citing Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 at 694 and Jennings Constructions Ltd v Burgundy Royale Investments Pty Ltd (1986) 161 CLR 681 at 685. 30 Third, a stay will generally be appropriate where there is a likelihood that a successful appeal will be rendered nugatory if no stay is granted: Alexander at 695; In-N-Out Burgers, Inc v Hashtag Burgers Pty Ltd (No 2) [2020] FCA 772 at [25]-[26]. It has also been said, albeit generally in the context of the stay of money judgments, that a stay may be appropriate where there is a real risk that it will not be possible for a successful appellant to be restored to its former position if the judgment is executed: Stay Judgment at [6], [16] and [19], citing Nichol v Discover Africa at [7]. 31 Fourth, while a judge is not required to speculate about the applicant's prospects of success, a stay will not be granted if the applicant is unable to demonstrate that there are at least arguable grounds for leave to appeal, or grounds of appeal. Needless to say, a stay will not be granted if an appeal, or proposed appeal, has no prosects of success or is not bona fide.

PROPOSED APPEAL GROUNDS and submissions 32 It is convenient to first address the parties' submissions in relation to the strength, or otherwise, of the proposed grounds of appeal and the prospects of Martin & Pleasance successfully obtaining leave to appeal. 33 The draft notice of appeal relied on by Martin & Pleasance contains 14 grounds. Five of the appeal grounds, grounds 1 to 5, relate to the primary judge's finding that Nelson had a prima facie case that Martin & Pleasance had engaged in misleading and deceptive conduct based on the similarities between the packaging of the Rescue product and the packaging of the RestQ products. Seven of the appeal grounds, grounds 6 to 12, relate to the primary judge's findings concerning the balance of convenience. One of the grounds, ground 13, relates to the primary judge's finding that damages would not be an adequate remedy for Nelson and another ground, ground 14, relates to the fact that the primary judge did not make an order requiring Nelson to provide security for costs. 34 It is unnecessary and probably undesirable to consider the proposed grounds of appeal at length, particularly given that they will be the subject of detailed consideration by the Full Court in considering and determining the application for leave to appeal and, if it comes to it, the appeal. Needless to say, on the one hand, Martin & Pleasance contended that the grounds of appeal all raise errors of the sort identified in House v R (1936) 55 CLR 499 at 504-505 and that the grounds were arguable, if not strongly arguable, and strongly supported the grant of leave to appeal. On the other hand, Nelson contended that the proposed appeal grounds did not raise errors of principle and, in any event, were unmeritorious. 35 The oral submissions advanced by Martin & Pleasance in support of the extension of the stay focussed primarily on errors of principle that it contended were made by the primary judge in addressing the balance of convenience. It is appropriate, in those circumstances, to focus on those grounds, though Martin & Pleasance maintained that the grounds relating to the primary judge's finding that Nelson had a prima facie case were also meritorious. In short summary, Martin & Pleasance submitted that the primary judge made four errors of principle in concluding that the balance of convenience supported the making of the interlocutory injunction. 36 First, it was submitted that, while the primary judge apparently accepted that Martin & Pleasance would suffer harm as a result of the making of an interlocutory injunction, his Honour did not weigh that harm against any harm that Nelson might suffer if the interlocutory injunction was not made. Rather, in Martin & Pleasance's submission, his Honour simply found that the fact that there was a prima facie case that the marketing of the RestQ product by Martin & Pleasance was misleading and deceptive tilted the balance of convenience in Nelson's favour. 37 Second, it was submitted that the primary judge failed to properly assess and weigh the strength of the prima facie case in the balance. That was said to be particularly significant given his Honour's acceptance that there was a real prospect that the making of the interlocutory injunction would be tantamount to final relief. In those circumstances, an interlocutory injunction should not have been granted unless Nelson was able to demonstrate a relatively strong case: cf Samsung at [72]-[74], [87]-[89]. In Martin & Pleasance's submission, his Honour made no such finding. 38 Third, Martin & Pleasance submitted that the primary judge erred in approaching the issue whether an interlocutory injunction should be made to preserve the status quo until the final hearing on the basis that the status quo was the state of affairs prior to the time that Martin & Pleasance entered the market with the RestQ products. The correct approach, so it was submitted, was to assess the state of affairs in the period immediately before the commencement of the proceeding seeking injunctive relief. The state of affairs in that period was that the RestQ products had been in the market for over two weeks. 39 Fourth, it was submitted that, in assessing the harm that Nelson may suffer if an interlocutory injunction was not granted, the primary judge erred in failing to have regard to the fact that Nelson was not presently able to supply its Rescue products in Australia. The evidence demonstrated that Nelson was unable to lawfully supply its Rescue products until a regulatory issue concerning the registration and sponsorship of its products in the Australian Register of Therapeutic Goods (ARTG) had been resolved. That was said to be a relevant consideration that the primary judge was required to, but failed to, take into account. 40 For its part, Nelson submitted that the draft grounds of appeal disclosed no errors of principle or errors of the sort considered in House. Rather, the grounds in essence simply sought to attack the application of established principles to the facts of the case. Nelson pointed out, in that regard, that some of the grounds simply challenged the weight that the primary judge gave to different factors and that others simply attacked findings of fact. In Nelson's submission, the primary judge was correct when he found, in the context of the Stay Judgment, that the proposed appeal grounds did not involve errors of principle or any errors that would attract the intervention of the Full Court. 41 Nelson also submitted that the arguments advanced by Martin & Pleasance were for the most part based on an unfair or inaccurate reading of the Interlocutory Judgment. To give but one example, Nelson submitted that, contrary to Martin & Pleasance's contention, the primary judge did make a finding concerning the harm that would be suffered by Nelson, in the form of damage to its goodwill in the Rescue product, if an interlocutory injunction was not made: Interlocutory Judgment [45] and [51]. Nelson also contended that, contrary to the submission advanced by Martin & Pleasance, the primary judge did weigh the harm that Nelson would suffer if Martin & Pleasance was not restrained from continuing to market the RestQ products against the harm that Martin & Pleasance claimed it would suffer if an interlocutory injunction was granted. 42 Nelson submitted that the primary judge was right to find that the balance of convenience weighed in favour of the grant of an interlocutory injunction. In its submission, the complaints made by Martin & Pleasance concerning the primary judge's findings in relation to the balance of convenience were unfounded. Nelson submitted, in that context, that the evidence of harm that was relied on by Martin & Pleasance amounted to little more than evidence of Mr Holyman's subjective fears or beliefs, unsupported by objective facts. In any event, in Nelson's submission, any harm that might be suffered by Martin & Pleasance as a result of the making of an interlocutory injunction was harm of their own making given that they had chosen to promote, market and supply their products using a name and packaging that was deceptively similar to the name and packaging of Nelson's product that it had previously distributed. As for the harm that would be suffered by Nelson if an interlocutory injunction was not made, Nelson submitted that it faced losing its established place in the Australian market and on pharmacy shelves to a misleadingly branded rival which was less established. 43 As for the grounds of appeal relating to the primary judge's findings or reasoning concerning the status quo, Nelson submitted that the primary judge was plainly right to find, in effect, that the purpose of the interlocutory injunction was to keep the "invader of its existing market at bay until a decision has been reached as to whether the invasion is lawful or not": cf Beecham Group Limited v Bristol Laboratories Pty Limited (1968) 118 CLR 618 at 627. The status quo, in other words, was the state of affairs before Martin & Pleasance's entry into the market.

EVIDENCE AND SUBMISSIONS RELATING TO THE CASE FOR A STAY 44 Both Martin & Pleasance and Nelson adduced evidence which was directed to the factors that were or may be relevant to the extension of the limited stay granted by the primary judge. 45 As already noted, the evidence filed by Martin & Pleasance included affidavit evidence from Mr Holyman concerning the economic and other harm that Martin & Pleasance would suffer if the interlocutory injunction was not stayed pending the hearing of the application for leave to appeal. That evidence was to the effect that Martin & Pleasance would suffer significant losses to its revenue and profits from its inability to supply its products and meet anticipated orders by retailers. Its inability to meet orders would also cause damage to its reputation and relationships with retailers, as well as the loss of money already expended or committed in respect of marketing and advertising. Mr Holyman's evidence was that this loss and damage would be suffered by Martin & Pleasance even if the interlocutory application was in place for only a matter of weeks. He also said that he believed that the harm would be irreparable. 46 Mr Holyman's evidence also addressed the fact that Nelson is currently unable to supply its Rescue products in Australia. That is because Martin & Pleasance continues to be listed as the sponsor for those products on the ARTG and there is a dispute between Nelson and Martin & Pleasance about whether the terms of the distribution agreement between them obliged Martin & Pleasance to transfer that sponsorship. Mr Holyman's evidence was that Martin & Pleasance had not supplied any of Nelson's Rescue products in Australia since the end of the distribution agreement on 12 February 2021. His understanding was that neither Nelson nor its new distributor, Juno Laboratories Pty Limited, have been or are able to supply the Rescue products in Australia since that time because Juno is not listed on the ARTG as the sponsor of those products and there is at least significant uncertainty as to when that sponsorship issue will be able to be resolved. 47 Martin & Pleasance submitted that the evidence clearly and incontrovertibly demonstrated that it would suffer a number of types of harm if the Court did not extend the existing stay or further stay the orders until the hearing of the application for leave to appeal. The categories of harm included: first, its inability to supply its RestQ products in satisfaction of existing or forecast future orders by pharmacies and other retailers; second, substantial lost profits and revenue from its inability to supply its products; third, losses arising from the fact that some of its existing stock may come close to expiring during the period that it is unable to supply, with the result that that stock will become unsaleable; fourth, damage to its reputation as a result of its inability to supply in all the circumstances; fifth, wasted money that it had expended or committed to expend in relation to marketing and advertising, including in conjunction with pharmacies and other retailers over the next few months; sixth, continuing harm arising from the fact that consumers may switch to rival products during the period that it is unable to supply; and seventh, harm to innocent third parties, including consumers who will be unable to purchase the RestQ products and harm to the public interest arising from the absence of competition. 48 Martin & Pleasance argued that most of the categories of harm that it will suffer if a stay is not granted could not be adequately compensated by an award of damages and that, given that it is only a new entrant in the market, the damages would be difficult to quantify. It also submitted that Nelson's undertaking as to damages may ultimately provide it with little protection given that Nelson is a foreign company with no direct presence in Australia and that Nelson has provided no security in respect of its undertaking. 49 For its part, Nelson submitted that the Court should conclude that Martin & Pleasance will suffer comparatively little harm if the stay is not extended, or a further stay is not granted, up to the time of the hearing of the application. Nelson submitted that Mr Holyman's evidence concerning the harm that Martin & Pleasance would suffer if the stay was not extended, or a further stay was not granted, was again flawed in that it amounted to little more than his subjective expectation or guess as to what might happen and that the figures referred to by Mr Holyman were again not supported by documentary or other objective evidence. Nelson also contended that pharmacies and retailers were likely to have restocked during the period of the stay to date and that, in any event, Martin & Pleasance had not shown that it had explored viable alternatives to selling the RestQ products, such as "over-labelling" the packaging of the existing RestQ stock or selling its other branded sleep relief products. As for wastage, Nelson pointed out that photographic evidence revealed that some of the RestQ stock had expiry dates which were unlikely to come close to expiring in the near future. As for its undertaking as to damages, Nelson submitted that it is a long-established and reputable company which is in a sound financial state and that Martin & Pleasance had not squarely applied for security in respect of its undertaking as to damages before the primary judge. 50 The evidence filed by Nelson included an affidavit sworn by its solicitor, Mr Christopher Williams and an affidavit sworn by Mr Andrew Raper, the managing director of Juno, Nelson's new Australia distributor. Mr Williams' evidence addressed some conduct by or on behalf of Martin & Pleasance that, it appeared to be suggested, may have amounted to a breach of the interlocutory injunction prior to the stay granted by the primary judge. It also addressed some online advertising by Martin & Pleasance which was said to be misleading and a "free shipping" promotion of the RestQ products. 51 Mr Raper's evidence addressed two topics; the first being the steps that had been taken by Juno since its appointment as Nelson's Australian distributor on 12 February and the second being the prejudice that Mr Raper believed that Juno would suffer if the interlocutory injunction was stayed. As for Juno's actions as Nelson's new distributor, the upshot of Mr Raper's evidence was that he believed that Juno would be able to apply to the Therapeutic Goods Administration for sponsorship of Nelson's Rescue products "within a matter of weeks." He also indicated that Juno had appointed a company to "over-label" existing Rescue stock so that it could include Juno's registration number on the ARTG in respect of the Rescue products once that registration was granted. Mr Raper believed or anticipated that Juno may be able to "re-enter the market with the Rescue Products" with the newly issued registration numbers by late April 2021. 52 Nelson's submissions focussed essentially on what it contended was the likely damage to its established and valuable goodwill in the Rescue products should the stay be extended. It emphasised that its substantive claims against Martin & Pleasance included not only the trademark and misleading and deceptive conduct claims, but also claims for breach of contract in respect of the distributorship agreement and breach of fiduciary duty. It submitted that the evidence would show that Martin & Pleasance had deliberately exploited its position as exclusive Australian distributor of the Rescue product to develop a rival product with a deceptively similar name and "get-up" with the intention of misappropriating Nelson's goodwill. Nelson submitted that the harm that it had suffered and would continue to suffer if Martin & Pleasance was permitted to continue to market the RestQ product was the very harm established by the legal principles which underpin the causes of action in passing off and misleading and deceptive conduct. 53 As for Mr Raper's evidence, Nelson submitted that it established that Nelson would be able to re-enter the market with its Rescue products through its new distributor, Juno, in the near future. The evidence, in Nelson's submission, indicated that it was possible for Juno to apply for sponsorship and registration of the Rescue product, even if Martin & Pleasance refused to transfer its registration and sponsorship. Nelson also argued that, contrary to the submissions advanced by Martin & Pleasance, it was contractually entitled to secure or retake title to or possession of the existing Rescue stock still held by Martin & Pleasance. It would then be able to apply labels to that stock which included Juno's name and registration number. It followed, according to Nelson, that the stock would become saleable and be in the marketplace by late April 2021.

CONSIDERATION - SHOULD THE STAY BE EXTENDED? 54 While the issue is somewhat finely balanced, I am persuaded that Martin & Pleasance has demonstrated that this is an appropriate case for a stay; that there is a sound reason or proper basis for a stay in the particular circumstances of the case. That is so for a number of reasons. 55 First, I am satisfied that Martin & Pleasance has at least an arguable case for the grant of leave to appeal. The principles that underpin the grant of leave to appeal are well-established. In simple terms, the applicant for leave must generally demonstrate two things: first, that the decision of the primary judge is attended by sufficient doubt to warrant appellate consideration by the Full Court; and second, that substantial injustice would result if leave were to be refused, supposing the decision of the primary judge to be wrong: Décor at 398-400. 56 There could be little doubt in this case concerning the second element. There could be little doubt in the circumstances that, supposing the primary judge's decision to have been wrong, Martin & Pleasance would suffer substantial injustice if leave to appeal was refused, particularly if the final hearing of Nelson's action does not take place for some significant period of time. The grant of the interlocutory injunction in those circumstances would have the practical effect of finally determining the rights of the parties and would certainly have a significant impact on the business of Martin & Pleasance: cf Samsung at [25] and [31]. Moreover, even though an interlocutory injunction is a matter of practice and procedure, an appeal or prospective appeal from an interlocutory injunction which involves matters of principle "stands somewhat above the ordinary appeal in a matter of practice and procedure": Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57; [2006] HCA 46 at [53]. 57 The critical consideration in determining whether Martin & Pleasance has a good arguable case for the grant of leave to appeal is whether the decision of the primary judge is attended by sufficient doubt to warrant appellate attention. That requires some attention to be given to the merits of the proposed grounds of appeal. 58 As noted earlier, it is both unnecessary and undesirable to give close consideration to the merits of the proposed grounds of appeal in the context of this application. That will ultimately be a matter for the Full Court. It suffices, in the circumstances, for me to conclude that at least some of the proposed grounds of appeal are at least reasonably arguable and raise errors of principle, or errors of the type considered in House, that are worthy and deserving of consideration by the Full Court. That is perhaps more so in the case of the proposed appeal grounds relating to the balance of convenience, which perhaps explains why those grounds were the focus of the oral submissions made by Martin & Pleasance. That said, at least some of the grounds relating to the primary judge's finding of a prima facie case could also arguably be said to raise issues of principle. 59 The fact that at least some of the proposed grounds of appeal were at least arguable and raised issues of principle was effectively demonstrated by the fact that the parties addressed them at some considerable length in their submissions. It is unlikely that so much time could or would have been devoted to the merits or otherwise of the proposed appeal if the proposed grounds of appeal were entirely meritless, or involved no real issues or questions of principle. 60 Second, I am satisfied that, when the harm and prejudice which may be suffered by Martin & Pleasance if the stay is refused is weighed against the harm and prejudice that may be suffered by Nelson if the stay is extended or granted up to the hearing of the application for leave to appeal, the balance tips in favour of granting the stay. That is particularly so given that the stay will be for only a fairly short space of time; as little as four or five weeks. 61 While some of Nelson's submissions concerning the nature of some of Mr Holyman's evidence may have had some merit, there ultimately could be little doubt that Martin & Pleasance is likely to suffer significant harm if the interlocutory injunction is not stayed at least up to the time of the hearing of the application for leave to appeal. Martin & Pleasance has clearly expended or committed itself to spend not insignificant sums of money in respect of the launch of the RestQ range of products. At least some of that expenditure will be essentially wasted if the interlocutory injunction is not stayed. 62 More significantly, by the time the interlocutory injunction was granted, the RestQ range of products had been in the market for almost a month. Orders had been placed by many pharmacies and retailers and it is a fair inference and conclusion that, but for the interlocutory injunction, further orders would be placed and filled during the month of April 2021. Martin & Pleasance will undoubtedly suffer not insubstantial losses of revenue and profits if it is not able to supply its products in fulfilment of those orders. There is also at least some merit in the submission that those losses may be difficult to quantify. It is also a fair inference that Martin & Pleasance would suffer more intangible harm if the interlocutory injunction is not stayed, including reputational harm and the potential for ongoing loss of customers. The suggestion by Nelson that Martin & Pleasance could avoid the harm arising from the interlocutory injunction by over-labelling its products, or selling alternative products, was and is somewhat unrealistic. 63 It may also be accepted that Nelson may suffer some harm to its goodwill in the Rescue range of products in the event that the interlocutory injunction is stayed. The extent of that potential harm is, however, difficult to gauge and even more difficult to quantify, particularly given the relatively short period of the stay. There was certainly no concrete evidence of the extent of any loss or damage to the goodwill attaching to the Rescue name and get-up if Martin & Pleasance is able to continue to promote, market and supply the RestQ products until the hearing of the application for leave to appeal. It is perhaps for that reason that Nelson's submission rested on the general proposition that the harm suffered by it was simply established by the legal principles which underpin the cause of actions in passing off and misleading and deceptive conduct. It is also perhaps for that reason that the primary judge appears not to have made any concrete findings concerning the harm that would be suffered by Nelson if an interlocutory application was not made. 64 Perhaps more importantly, the extent of any loss or harm that may be suffered by Nelson is also significantly reduced by the fact that it will, in any event, almost certainly not be able to supply any of its Rescue products in Australia during most, if not all, of the period covered by the proposed stay. While the evidence tended to suggest that there may be some scope for Juno to apply for sponsorship of the Rescue range, despite the fact that Martin & Pleasance retains sponsorship of those products, that position is by no means certain. The same can be said of Nelson's claim that it can compel Martin & Pleasance to transfer the sponsorship under the terms of the distributorship agreement. That right is the subject of a dispute that is unlikely to be resolved in the short term. 65 An even more fundamental problem for Nelson is that, even if it and Juno are able to sort out the issue concerning registration and sponsorship, it is at best highly unlikely that they will be able to obtain and over-label Rescue stock for supply in the foreseeable future. Even on the best case scenario outlined by Mr Raper, it is unlikely that Juno would be in any position to supply any Rescue product in the Australian market until late April 2021. 66 It follows that it cannot be accepted that Nelson will suffer any monetary loss arising from lost sales during April 2021 as a result of any extension of the stay. That is a particularly significant consideration. 67 In all the circumstances, I am satisfied that the harm that would or may be suffered by Martin & Pleasance if the stay is not extended is greater than the harm to Nelson if the stay is extended up until the hearing of the application for leave to appeal and, if leave is granted, the hearing of the appeal. 68 It should also be noted, in this context, that there is some merit in the submission advanced by Martin & Pleasance to the effect that the consequence of refusing the stay sought by it is likely to be that it will continue to suffer loss and damage as a result of the interlocutory decision until at least the time that the Full Court delivers its judgment in relation to the leave application and appeal, if leave is granted. As the Full Court is likely to reserve its judgment, the period during which Martin & Pleasance would continue to suffer harm as a result of the interlocutory injunction would persist for some period after the hearing in the Full Court. In contrast, if the stay is extended up to the hearing of the leave application, it is at least likely that the Full Court may consider whether to extend the stay or not at the hearing. If, as Nelson claimed, the proposed appeal has little or no merit, it is unlikely that the Full Court would extend the stay beyond the hearing. Therefore, the period during which Nelson may suffer harm as a result of any stay granted as a result of this application is likely to be less than the period during which Martin & Pleasance may suffer harm if the stay is not granted. 69 Third, the main thrust of Nelson's case in opposition to the continuation of the stay was its contention that Martin & Pleasance had deliberately set out to exploit its position as Nelson's exclusive distributor to misappropriate the goodwill inhering in the Rescue products. . In those circumstances, so it was submitted, the Court should give little weight to any loss or damage that Martin & Pleasance may suffer as a result of the interlocutory injunction because it was loss of damage of Martin & Pleasance's own making. The problem for Nelson, however, is that the primary judge did not find that Martin & Pleasance deliberately set out to misappropriate Nelson's goodwill, or pass its products off as Nelson's products, or mislead or deceive consumers. Nor is it possible to make any such findings on the basis of the evidence before the Court for the purposes of this application. While Nelson placed some reliance on the affidavit evidence of its chief marketing officer, Mr Crispian Burson-Thomas, which was before the primary judge, that evidence really amounted to little more than Mr Burson-Thomas' subjective concerns or beliefs. That evidence obviously did not persuade the primary judge to make any findings along the lines of those urged by Nelson in opposition to the stay.

CONCLUSION AND DISPOSITION 70 This is, in all the circumstances, an appropriate case for a short stay of the interlocutory injunction pending the expedited hearing of the application for leave to appeal and appeal, if leave is granted. Martin & Pleasance has demonstrated that it has a reasonably arguable case for the grant of leave to appeal. More significantly, when the competing rights of the parties and the extent to which the grant or withholding of a stay will result in prejudice being suffered by them are weighed in the balance, the balance tips in favour of the grant of a further short stay. 71 It is, in all the circumstances, appropriate to grant a stay, in essentially the same terms as the short stay granted by the primary judge, other than that the stay remain in place until 4.15 pm on the day that the application for leave to appeal and the appeal, if leave is granted, is heard. It is also appropriate to order that the application for leave to appeal be heard concurrently with, or, alternatively, immediately before, the appeal which is the subject of that application and that the hearing of the leave application and appeal be expedited. The costs of the Stay Application should be reserved. I certify that the preceding seventy-one (71) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wigney.