The Federal Court granted a stay of its orders until 4pm today, to give Apple an opportunity to launch an application for Special Leave to appeal to the High Court. While it would be impossible to schedule a hearing on such an application before the end of the week, the Federal Court determined that any further stay of the orders would be a matter for the High Court.
After hearing arguments from both sides, Justice Heydon granted Apple's request for a further stay, finding that the extension is necessary ‘to preserve the subject matter of a Special Leave application’, and ensuring that it will now be at least a further week before Samsung is able to bring stock of the Galaxy Tab 10.1 into Australia.
In Court this morning, Samsung's lawyers revealed that the company had plans in place to commence importing the tablet over the weekend, unless prevented from doing so by an extended stay of the Federal Court's orders. With Justice Heydon indicating that an expedited Special Leave Hearing could be convened next Friday, they further argued that Samsung would only suffer greater injustice if delayed by yet another week. Samsung also urged Justice Heydon not to confuse the interest of the public in the case (i.e. the level of media coverage) with the public interest.
Apple, naturally, argued for maintenance of the 'status quo', i.e. for the stay of the Federal Court's orders to continue, pending any hearing on an application for Special Leave. It's lawyers also rehashed the argument that damages would not be an adequate remedy if Apple were ultimately to win at trial, due to the ongoing revenue from apps and accessories, and the fact that user become locked-in to either the Apple or Android 'ecosystem'.
And, in a new argument, Apple's lawyers contended that the order of the Full Federal Court for Samsung to maintain records in relation to Galaxy Tab 10.1 revenues (for the purpose of calculating compensation) would be inadequate because it fails to take into account associated purchases, such as Android-based phones, that might be made by Galaxy Tab owners.
Although the case has already been heard to death before a total of four Federal Court justices, and the prospects of a successful application for Special Leave to appeal are surely slim, Apple and its lawyers will tonight be celebrating the gain of at least one more week of exclusion of the Galaxy Tab from the Australian market. And that would leave Samsung with no more than two shopping-weeks before Christmas.