MDS Diagnostics Pty Limited v Inverness Medical Switzerland GmbH (No 2) [2011] FCA 64 (2 February 2011)

Last Updated: 22 March 2011

FEDERAL COURT OF AUSTRALIA

MDS Diagnostics Pty Limited v Inverness Medical Switzerland GmbH (No 2) [2011] FCA 64

Citation:	MDS Diagnostics Pty Limited v Inverness Medical Switzerland GmbH (No 2) [2011] FCA 64
Appeal from:	Inverness Medical Switzerland GmbH v MDS Diagnostics Pty Limited [2010] FCA 108
Parties:	MDS DIAGNOSTICS PTY LIMITED and PRAKASH APPANNA v INVERNESS MEDICAL SWITZERLAND GMBH
File number(s):	NSD 1031 of 2010
Judge:	EMMETT J
Date of judgment:	2 February 2011
Legislation:	Federal Court of Australia Act 1976 (Cth) s 25(2B)(ba)
Date of hearing:	2 February 2011
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No catchwords
Number of paragraphs:	3
Solicitor for the First Appellant:	G. Francis of Douros Jackson Lawyers
Counsel for the Third Appellant:	The Third Appellant did not appear
Counsel for the Respondent:	P.W. Flynn
Solicitor for the Respondent:	Addisons

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1031 of 2010

ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	MDS DIAGNOSTICS PTY LIMITED (ACN 090 765 702) First Appellant PRAKASH APPANNA Third Appellant
AND:	INVERNESS MEDICAL SWITZERLAND GMBH Respondent

JUDGE:	EMMETT J
DATE OF ORDER:	2 FEBRUARY 2011
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed.
2. The first and third appellants pay the respondent's costs of the appeal.
   

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1031 OF 2010

ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	MDS DIAGNOSTICS PTY LIMITED (ACN 090 765 702) First Appellant PRAKASH APPANNA Third Appellant
AND:	INVERNESS MEDICAL SWITZERLAND GMBH Respondent

JUDGE:	EMMETT J
DATE:	2 FEBRUARY 2011
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. On 19 November 2010, the Court ordered that the appellants, within seven days, provide security for the respondent's costs of the appeal in the sum of $60,000 in a form acceptable to the Registrar. The Court directed that, upon failure to comply with that order, the appeal be stayed. No security has been provided by the appellants. The effect is that the appeal has been stayed since 27 November 2010.
2. When the matter was called on today for directions, the solicitor for the remaining appellants indicated that he had no instructions to oppose the application now made by the respondent for the proceeding to be dismissed for want of prosecution. The appellants’ solicitor indicated that he had no instructions as to whether it was likely that the appellants would raise the necessary funds to provide the security, although he understood that there was some suggestion that attempts were still being made.
3. In all of the circumstances, although the period that has elapsed since the stay began included the period of Christmas and January, I consider that it is appropriate, in the absence of any other application on the part of the appellants, that the appeal be dismissed pursuant to s 25(2B)(ba) of the Federal Court of Australia Act 1976 (Cth).
   

I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated: 8 February 2011