Federal Court Orders Each Party to Bear Own Costs for Interlocutory Application

OUTCOME: Other

FEDERAL COURT OF AUSTRALIA

[APPELLANT] [COMPANY] v [APPELLANT] (No 7) [2018] FCA 1160 File number: NSD 516 of 2016

Judge: ROBERTSON J

Date of judgment: 8 August 2018

Date of hearing: Determined on the papers

Date of last submissions: 1 August 2018

Registry: New South Wales

Division: General Division

National Practice Area: Intellectual Property

Sub-area: Patents and associated Statutes

Category: No Catchwords

Number of paragraphs: 9

Counsel for the Applicant/First Cross-Respondent to the First Cross-Claim: [NAME] [COUNSEL] [NAME] with [NAME] [COUNSEL] [NAME]

Solicitor for the Applicant/ First Cross-Respondent to the First Cross-Claim: [NAME]

Counsel for the Respondents/ Cross-Claimant of the First Cross-Claim/Cross-Respondent to the Second Cross-Claim: [NAME] [COUNSEL] [NAME] with Dr [COUNSEL]

Solicitor for the Respondents/Cross-Claimant of the First Cross-Claim/Cross-Respondent to the Second Cross-Claim: [NAME]

Counsel for the Second Cross-Respondent to the First Cross-Claim/Cross Claimant of the Second Cross-Claim: [NAME] [COUNSEL]

Solicitor for the Second Cross-Respondent to the First Cross-Claim/Cross Claimant of the Second Cross-Claim: [APPELLANT] 516 of 2016

BETWEEN: [APPELLANT]) Applicant

AND: [COMPANY] (ACN 133 616 369) First Respondent

[NAME] Respondent

[NAME] (and others named in the Schedule) Third Respondent

AND BETWEEN: [COMPANY] (ACN 133 616 369) Cross-Claimant of the First Cross-Claim

AND: [APPELLANT] [COMPANY] (and another named in the Schedule) First Cross-Respondent to the First Cross-Claim

AND BETWEEN: [COMPANY] (ACN 123 981 457) Cross-Claimant of the Second Cross-Claim

AND: [COMPANY] (ACN 133 616 369) Cross-Respondent to the Second Cross-Claim

JUDGE: ROBERTSON J DATE OF ORDER: 8 AUGUST 2018

THE COURT ORDERS THAT:

1. Each party bear its or his own costs of the interlocutory application filed on 30 May 2018. 2. Those costs are to include the costs of the respondents' application for an order that the applicant pay the respondents' costs of the interlocutory application. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

ROBERTSON J: 1 On 19 June 2018 I made orders and gave reasons in relation to an interlocutory application brought by [APPELLANT] to amend its pleadings and for further discovery: [APPELLANT] [COMPANY] v [APPELLANT] (No 6) [2018] FCA 910. 2 At [39] of those reasons, I said: I will, if necessary, hear the parties in relation to costs. I indicate that my present provisional view is that, in light of the mixed success of the parties on [APPELLANT] interlocutory application, there should be no order as to costs of the interlocutory application except that [APPELLANT] should pay [NAME]'s costs, if any, thrown away by reason of the amendments to the pleadings which I have allowed. 3 Orders 8 and 9 were in the following form:

8. Subject to order 9, each party bear its or his own costs of the interlocutory application fled on 30 May 2018.

9. If any of the parties wishes to contend for a different costs order, they are to notify [NAME] and the other parties and thereafter directions will be made for the exchange of short written submissions and the determination of that issue on the papers. 4 On 24 July 2018, the respondents gave notice pursuant to order 9 that they wished to contend for a different costs order to that in order 8. 5 Having considered the respondents' submissions on costs dated 25 July 2018 and [APPELLANT] submissions in answer dated 1 August 2018, including the correspondence referred to at [5.1] of those submissions in answer, I have concluded that the parties had mixed success on [APPELLANT] interlocutory application, leaving aside order 7 made on 19 June 2018 that the applicant was to pay the respondents' costs thrown away, if any, by reason of the amendments I did allow. Order 7 was not the subject of leave to contend for a costs order different to the order I indicated provisionally I would make. 6 The order I make is: Each party bear its or his own costs of the interlocutory application filed on 30 May 2018. 7 This leaves for consideration the disposition of the parties' costs of the application by the respondents for their costs. 8 In my opinion the costs of the application for a costs order should form part of the disposition of the costs of the interlocutory application and accordingly each party should bear its or his own costs in that respect. The views I provisionally expressed were just that, provisional, and I do not consider that any different disposition of the argument about costs is warranted. 9 The orders that I make therefore are:

1. Each party bear its or his own costs of the interlocutory application filed on 30 May 2018.

2. Those costs are to include the costs of the respondents' application for an order that the applicant pay the respondents' costs of the interlocutory application. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Robertson.

Associate: Dated: 8 August 2018

SCHEDULE OF PARTIES NSD 516 of 2016

Respondents Fourth Respondent: [redacted] Respondent: [redacted] Second Cross-Respondent to the First [RESPONDENT] [COMPANY] (ACN 123 981 457)