Gill v Ethicon Sarl (No 9) [2020] FCA 1838

Gill v Ethicon Sarl (No 9) [2020] FCA 1838

The respondents did not discharge their burden of demonstrating a proper basis for a stay or for the alternative escrow order: they made no attempt to show the appeal was arguable and did not put the notice of appeal before the Court; their asserted risk of dissipation was little more than speculation and unsupported by evidence that Shine Lawyers could not repay the costs if the orders were set aside; placing the money in an interest-bearing account would not alleviate prejudice to Shine given negligible interest rates; and there was unexplained delay in approaching the Court.

Jurisdiction
Australia
Judgment Date
18 December 2020
Procedural Posture
Interlocutory Application for Stay of Lump Sum Costs Order Pending Appeal / Application by Respondents Filed on 17 December 2020 for Stay of Registrar's Costs Orders Pending Disposition of Appeal, or Alternatively Payment Into Escrow
Outcome
The respondents' interlocutory application was dismissed with costs.
Legal Topics
['stay Pending Appeal' 'lump Sum Costs Order' 'escrow Pending Appeal' 'burden on Applicant for Stay' 'risk of Dissipation']
['practice and Procedure' 'costs'] ['stay Pending Appeal' 'lump Sum Costs Order' 'escrow Pending Appeal' 'burden on Applicant for Stay' 'risk of Dissipation']

Case Brief

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Procedural Posture

Interlocutory Application for Stay of Lump Sum Costs Order Pending Appeal / Application by Respondents Filed on 17 December 2020 for Stay of Registrar's Costs Orders Pending Disposition of Appeal, or Alternatively Payment Into Escrow

Legal Issues

  1. 1 ["Whether the Registrar's lump sum costs orders should be stayed pending disposition of the appeal." 'Whether, alternatively, the costs should be paid into and held in escrow in an interest-bearing account pending the appeal.' 'Whether the respondents demonstrated a proper basis for a stay or alternative order, including an arguable appeal and a real risk of dissipation.']

Ratio Decidendi

The respondents did not discharge their burden of demonstrating a proper basis for a stay or for the alternative escrow order: they made no attempt to show the appeal was arguable and did not put the notice of appeal before the Court; their asserted risk of dissipation was little more than speculation and unsupported by evidence that Shine Lawyers could not repay the costs if the orders were set aside; placing the money in an interest-bearing account would not alleviate prejudice to Shine given negligible interest rates; and there was unexplained delay in approaching the Court.

Court Disposition

The respondents' interlocutory application was dismissed with costs.

Orders

  • ["The respondents' interlocutory application filed on 17 December 2020 be dismissed with costs."]