mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Airsense Technology Ltd v Vision Systems Ltd (2007) 73 IPR 65
Outcome: cited
After the Commissioner's decision the applicant successfully obtained an amendment. The amendment had the effect of narrowing the claims. Counsel for the respondent accepts that the appeal should proceed to deal with the patent in its amended form. See Genetics Institute Inc v Kirin-Amgen Inc (1996) 34 IPR 513 at 515, which was accepted as correct, although distinguished on the facts in Airsense Technology Ltd v Vision Systems Ltd (2007) 73 IPR 65 at [13].
Case: Access For All Alliance (Hervey Bay) Inc v Hervey Bay City Council [2007] FCA 974
Outcome: applied
An award of costs is in the discretion of the Court or Judge except as provided by any other Act: Federal Court of Australia Act s 43(2). The discretion must be exercised judicially. In the normal course, costs are ordered to be paid on a party and party basis: Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225 at 232; Re Wilcox; Ex parte Ventura Industries Pty Ltd (No 2) (1996) 72 FCR 152 at 158 per Cooper and Merkel JJ. A costs order is not intended to punish the unsuccessful party but rather to compensate the successful party: Hurst and Devlin v Education Queensland (No 2) [2005] FCA 793 at [5] . This is so even where the ordinary practice is departed from. The aim is not to punish or deter future litigants but simply to compensate a party fully for costs which normal party-party costs could not be expected to do, where it was unreasonable for that party to be subjected to any expenditure of costs, such as where a hopeless proceeding is brought: Cirillo v Consolidated Press Property Ltd (No 2) [2007] FCA 179 at [4] - [5] . Any departure from this general rule requires a special reason: Access For All Alliance (Hervey Bay) Inc v Hervey Bay City Council [2007] FCA 974 at [10] ; Pacific Publications Pty Ltd v Next Publishing Pty Ltd [2005] FCA 971 at [5] . The categories in respect of which departure from the usual rule are contained are not closed: John S Hayes &amp; Associates Pty Limited v Kimberley-Clarke Australia Pty Limited (1994) 52 FCR 203; Jianshe Southern Pty Ltd v Turnbull Cooktown Pty Ltd (No 2) [2007] FCA 903 at [32] .
Case: Allstate Life Insurance Co v ANZ Banking Group Ltd [1995] FCA 660
Outcome: referred to
The general rule under Order 62 rule 3(3) may be departed from where the party in whose favour the costs order was made was required by the interlocutory proceeding to "incur significant costs over and above those which it would have incurred had the opposing party acted with competence and diligence": Life Airbag Co of Australia Pty Ltd v Life Airbag Co (New Zealand) Ltd [1998] FCA 545 ; where the proceeding is complex and its final resolution is a long time away: Allstate Life Insurance Co v ANZ Banking Group Ltd [1995] FCA 660 ; Readymix Holdings International Pte Ltd v Wieland Process Equipment Pty Ltd [2006] FCA 1297: Courtney v Medtel Pty Ltd (No 3) [2004] FCA 347. 24 In McKellar v Container Terminal Management Services Ltd [1999] FCA 1639 , Weinberg J adopted the observation of Lindgren J in Allstate that: ... the power to order that costs be paid forthwith should perhaps be used less sparingly than it has been in the past. That is particularly so in lengthy and complex cases where substantial costs have been thrown away as a result of ill-considered pleadings being drawn. Such costs should be capable of being recovered without the innocent party having to wait, possibly for years, for that to occur.
Case: Barrett v Metricon [2007] FCA 1509
Outcome: referred to
Barrett Property Group Ltd and SRS Property Holdings Pty Ltd are the successful applicants in proceedings brought against Metricon Homes Pty Ltd, Ross Palazzesi and Adrian Popple under the Copyright Act 1968 (Cth). On 24 October 2007, by consent, a declaration of infringement of copyright by Metricon as well as declarations that Palazzesi and Popple authorised such infringement were made. Those orders were made following my judgment in the matter which was delivered on 28 September 2007: Barrett Property Group Pty Ltd v Metricon Homes Pty Ltd [2007] FCA 1509. The question of costs which was held over for further argument is now before the Court for resolution. 2 The applicants seek an order that costs be taxed and paid forthwith, and that in respect of half of the costs of preparation and trial, these be taxed on an indemnity basis. The respondents oppose the application but say that if indemnity costs are to be paid then this should be in respect of only 4/13ths of the costs. The trial took thirteen days.
Case: Cirillo v Consolidated Press Property Ltd (No 2) [2007] FCA 179
Outcome: cited
An award of costs is in the discretion of the Court or Judge except as provided by any other Act: Federal Court of Australia Act s 43(2). The discretion must be exercised judicially. In the normal course, costs are ordered to be paid on a party and party basis: Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225 at 232; Re Wilcox; Ex parte Ventura Industries Pty Ltd (No 2) (1996) 72 FCR 152 at 158 per Cooper and Merkel JJ. A costs order is not intended to punish the unsuccessful party but rather to compensate the successful party: Hurst and Devlin v Education Queensland (No 2) [2005] FCA 793 at [5] . This is so even where the ordinary practice is departed from. The aim is not to punish or deter future litigants but simply to compensate a party fully for costs which normal party-party costs could not be expected to do, where it was unreasonable for that party to be subjected to any expenditure of costs, such as where a hopeless proceeding is brought: Cirillo v Consolidated Press Property Ltd (No 2) [2007] FCA 179 at [4] - [5] . Any departure from this general rule requires a special reason: Access For All Alliance (Hervey Bay) Inc v Hervey Bay City Council [2007] FCA 974 at [10] ; Pacific Publications Pty Ltd v Next Publishing Pty Ltd [2005] FCA 971 at [5] . The categories in respect of which departure from the usual rule are contained are not closed: John S Hayes &amp; Associates Pty Limited v Kimberley-Clarke Australia Pty Limited (1994) 52 FCR 203; Jianshe Southern Pty Ltd v Turnbull Cooktown Pty Ltd (No 2) [2007] FCA 903 at [32] .
Case: Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225
Outcome: applied
An award of costs is in the discretion of the Court or Judge except as provided by any other Act: Federal Court of Australia Act s 43(2). The discretion must be exercised judicially. In the normal course, costs are ordered to be paid on a party and party basis: Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225 at 232; Re Wilcox; Ex parte Ventura Industries Pty Ltd (No 2) (1996) 72 FCR 152 at 158 per Cooper and Merkel JJ. A costs order is not intended to punish the unsuccessful party but rather to compensate the successful party: Hurst and Devlin v Education Queensland (No 2) [2005] FCA 793 at [5] . This is so even where the ordinary practice is departed from. The aim is not to punish or deter future litigants but simply to compensate a party fully for costs which normal party-party costs could not be expected to do, where it was unreasonable for that party to be subjected to any expenditure of costs, such as where a hopeless proceeding is brought: Cirillo v Consolidated Press Property Ltd (No 2) [2007] FCA 179 at [4] - [5] . Any departure from this general rule requires a special reason: Access For All Alliance (Hervey Bay) Inc v Hervey Bay City Council [2007] FCA 974 at [10] ; Pacific Publications Pty Ltd v Next Publishing Pty Ltd [2005] FCA 971 at [5] . The categories in respect of which departure from the usual rule are contained are not closed: John S Hayes &amp; Associates Pty Limited v Kimberley-Clarke Australia Pty Limited (1994) 52 FCR 203; Jianshe Southern Pty Ltd v Turnbull Cooktown Pty Ltd (No 2) [2007] FCA 903 at [32] . 4 In Colgate-Palmolive, (at p 233) Sheppard J identified various categories which might give rise to an award of indemnity costs. These include: &#8226; the making of allegations of fraud knowing them to be false, and the making of irrelevant allegations of fraud; &#8226; evidence of particular misconduct that causes loss of time to the Court and to other parties; &#8226; the commencement or continuation of proceedings for an ulterior motive; &#8226; wilful disregard of known facts or clearly established law; &#8226; the making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions; and &#8226; an imprudent refusal of an offer to compromise.
Case: Courtney v Medtel Pty Limited (No 3) [2004] FCA 347
Outcome: referred to
The general rule under Order 62 rule 3(3) may be departed from where the party in whose favour the costs order was made was required by the interlocutory proceeding to "incur significant costs over and above those which it would have incurred had the opposing party acted with competence and diligence": Life Airbag Co of Australia Pty Ltd v Life Airbag Co (New Zealand) Ltd [1998] FCA 545 ; where the proceeding is complex and its final resolution is a long time away: Allstate Life Insurance Co v ANZ Banking Group Ltd [1995] FCA 660 ; Readymix Holdings International Pte Ltd v Wieland Process Equipment Pty Ltd [2006] FCA 1297: Courtney v Medtel Pty Ltd (No 3) [2004] FCA 347.
Case: Dias Aluminium Products Pty Ltd v Ullrich Aluminium Pty Ltd (No 2) [2005] FCA 1400
Outcome: referred to
Such matters are generally not capable of precise arithmetical calculation or analysis and are to a considerable extent matters of impression and judgment. See by analogy Dias Aluminium Products Pty Ltd v Ullrich Aluminium Pty Ltd (No 2) [2005] FCA 1400 at [7] . 20 I also consider that this conduct led to wasted costs in relation to much of the evidence of the respondents' expert Mr John Permewan. I did not afford his evidence any weight, because as I found, he was significantly misdirected by Metricon on a number of significant matters and was not told in the witness box before giving evidence about significant revisions to Metricon's witness statements. As a result, his opinions as to independent derivation were founded upon significantly incorrect assumptions and were of no real assistance to the Court. One example of this was that he incorrectly assumed that the Tyrell, Connolly and Streeton designs and homes were not designed by reference to the Prada 35. In fact, as I found, they were. He did not deal expressly in his report with the actual design drawings from which, according to the respondents, Prototypes 20A and 20B were derived. He assumed that certain evidence given by Bugeja, but which was disavowed by him at trial, was correct and he relied upon it. He accepted that Gallery 32 was used in the derivation of Prada 35. It was not. [252]-[256] Furthermore the applicants put the respondents on notice that Mr Permewan had been misinstructed. The solicitors for the applicants wrote to the respondents' solicitors by letter dated 9 October 2006 stating amongst other things that: Mr Permewan has proffered views about whether or not copying occurred by reference to his beliefs based on the untested evidence of Metricon's witnesses. It is clear from his report that Mr Permewan has taken as truthful, and without qualification, the evidence of Metricon's lay witnesses. I accept that consideration of Mr Permewan's affidavit evidence would have required significant amount of time before analysis on the part of the applicants' solicitors and counsel and indeed also by Dr John Cooke the expert architect obtained by the applicants. The matters deposed to by these lay witnesses may be overridden by the impressions formed by the Court following cross-examination. 21 The respondents should be ordered to pay costs on an indemnity basis to the extent of 50% of the preparation for trial and for the trial itself. The order should cover the period from early April 2006 when the respondents filed the first of the affidavits of Bugeja, Popple, Palazzesi and Biasin.
Case: Ian Duncan v Secretary, Department of Family and Community Services [2007] FCA 507
Outcome: referred to
I would think it likely that leave to appeal will be granted. The judgment, whilst interlocutory, is one on points of substance: Yap v Granich &amp; Associates [2001] FCA 1735 ; Dunstan v Orr [2007] FCA 873 at [6] ; Duncan v Secretary, Department of Family and Community Services [2007] FCA 507 at [18] .
Case: Dunstan v Orr [2007] FCA 873
Outcome: referred to
I would think it likely that leave to appeal will be granted. The judgment, whilst interlocutory, is one on points of substance: Yap v Granich &amp; Associates [2001] FCA 1735 ; Dunstan v Orr [2007] FCA 873 at [6] ; Duncan v Secretary, Department of Family and Community Services [2007] FCA 507 at [18] .
Case: Hamod v New South Wales (2002) 188 ALR 659
Outcome: cited
The respondents say that there were a number of issues which were legitimately raised and which should not attract an indemnity costs order. I accept that submission. However the question before me concerns the conduct of the respondents in relation to the related issues of derivation and copying. These are discrete issues and may be considered as such. The respondents say that there is nothing to warrant departure from the usual rule as to costs. They refer to Hamod v New South Wales (2002) 188 ALR 659 where Gray J (Carr and Goldberg JJ agreeing) said at [20]: 'Indemnity costs are not designed to punish a party for persisting with a case that turns out to fail. They are not awarded as a means of deterring litigants from putting forward arguments that might be attended by uncertainty. Rather, they serve the purpose of compensating a party fully for costs incurred, as a normal costs order could not be expected to do, when the court takes the view that it was unreasonable for the party against whom the order is made to have subjected the innocent party to the expenditure of costs.' (Emphasis added) The fact that the respondents' case on derivation and copying was rejected, it was submitted, does not lead inevitably to a grant of indemnity costs. That is so. 16 The question then is whether the respondents' conduct in relation to its defence on the issues of derivation and copying constitutes a sufficient reason to take this case, in that respect, out of the ordinary, so far as concerns the exercise of my discretion on the question of costs. I am persuaded that it does. This is not a case where merely arguments 'attended by uncertainty' were before the Court as in Hamod [20]. It is not a case involving witnesses who gave evidence believing it to be true but as to which they were mistaken. It is not a case where judgment depended essentially upon the inherent probabilities of one version of events against another but not involving questions of credit. It is not even a case, such as Walker, where one witness gave fabricated evidence as to part of a case. This matter involved a concerted effort on the part of four key witnesses to present a false defence which has led to the applicants incurring very considerable costs over a long period in meeting and overcoming that defence. The submissions put to me on behalf of the respondents concerning the abandonment by the applicants of its case for infringement of the whole of the Copyright Works, as opposed to merely a substantial part and the abandonment of cases involving houses other than the accused homes, do not respond to the application for indemnity costs. There was no application by the respondents for any variation of a normal costs order by reference to these matters and I did not treat the submissions concerning those separate issues as such. I am concerned merely with the issues of derivation and copying.
Case: Hurst and Devlin v Education Queensland (No 2) [2005] FCA 793
Outcome: cited
An award of costs is in the discretion of the Court or Judge except as provided by any other Act: Federal Court of Australia Act s 43(2). The discretion must be exercised judicially. In the normal course, costs are ordered to be paid on a party and party basis: Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225 at 232; Re Wilcox; Ex parte Ventura Industries Pty Ltd (No 2) (1996) 72 FCR 152 at 158 per Cooper and Merkel JJ. A costs order is not intended to punish the unsuccessful party but rather to compensate the successful party: Hurst and Devlin v Education Queensland (No 2) [2005] FCA 793 at [5] . This is so even where the ordinary practice is departed from. The aim is not to punish or deter future litigants but simply to compensate a party fully for costs which normal party-party costs could not be expected to do, where it was unreasonable for that party to be subjected to any expenditure of costs, such as where a hopeless proceeding is brought: Cirillo v Consolidated Press Property Ltd (No 2) [2007] FCA 179 at [4] - [5] . Any departure from this general rule requires a special reason: Access For All Alliance (Hervey Bay) Inc v Hervey Bay City Council [2007] FCA 974 at [10] ; Pacific Publications Pty Ltd v Next Publishing Pty Ltd [2005] FCA 971 at [5] . The categories in respect of which departure from the usual rule are contained are not closed: John S Hayes &amp; Associates Pty Limited v Kimberley-Clarke Australia Pty Limited (1994) 52 FCR 203; Jianshe Southern Pty Ltd v Turnbull Cooktown Pty Ltd (No 2) [2007] FCA 903 at [32] .
Case: Jianshe Southern Pty Ltd v Turnbull Cooktown Pty Ltd (No 2) [2007] FCA 903
Outcome: referred to
An award of costs is in the discretion of the Court or Judge except as provided by any other Act: Federal Court of Australia Act s 43(2). The discretion must be exercised judicially. In the normal course, costs are ordered to be paid on a party and party basis: Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225 at 232; Re Wilcox; Ex parte Ventura Industries Pty Ltd (No 2) (1996) 72 FCR 152 at 158 per Cooper and Merkel JJ. A costs order is not intended to punish the unsuccessful party but rather to compensate the successful party: Hurst and Devlin v Education Queensland (No 2) [2005] FCA 793 at [5] . This is so even where the ordinary practice is departed from. The aim is not to punish or deter future litigants but simply to compensate a party fully for costs which normal party-party costs could not be expected to do, where it was unreasonable for that party to be subjected to any expenditure of costs, such as where a hopeless proceeding is brought: Cirillo v Consolidated Press Property Ltd (No 2) [2007] FCA 179 at [4] - [5] . Any departure from this general rule requires a special reason: Access For All Alliance (Hervey Bay) Inc v Hervey Bay City Council [2007] FCA 974 at [10] ; Pacific Publications Pty Ltd v Next Publishing Pty Ltd [2005] FCA 971 at [5] . The categories in respect of which departure from the usual rule are contained are not closed: John S Hayes &amp; Associates Pty Limited v Kimberley-Clarke Australia Pty Limited (1994) 52 FCR 203; Jianshe Southern Pty Ltd v Turnbull Cooktown Pty Ltd (No 2) [2007] FCA 903 at [32] .
Case: John S Hayes &amp; Associates Pty Limited v Kimberley-Clarke Australia Pty Limited (1994) 52 FCR 210
Outcome: referred to
An award of costs is in the discretion of the Court or Judge except as provided by any other Act: Federal Court of Australia Act s 43(2). The discretion must be exercised judicially. In the normal course, costs are ordered to be paid on a party and party basis: Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225 at 232; Re Wilcox; Ex parte Ventura Industries Pty Ltd (No 2) (1996) 72 FCR 152 at 158 per Cooper and Merkel JJ. A costs order is not intended to punish the unsuccessful party but rather to compensate the successful party: Hurst and Devlin v Education Queensland (No 2) [2005] FCA 793 at [5] . This is so even where the ordinary practice is departed from. The aim is not to punish or deter future litigants but simply to compensate a party fully for costs which normal party-party costs could not be expected to do, where it was unreasonable for that party to be subjected to any expenditure of costs, such as where a hopeless proceeding is brought: Cirillo v Consolidated Press Property Ltd (No 2) [2007] FCA 179 at [4] - [5] . Any departure from this general rule requires a special reason: Access For All Alliance (Hervey Bay) Inc v Hervey Bay City Council [2007] FCA 974 at [10] ; Pacific Publications Pty Ltd v Next Publishing Pty Ltd [2005] FCA 971 at [5] . The categories in respect of which departure from the usual rule are contained are not closed: John S Hayes &amp; Associates Pty Limited v Kimberley-Clarke Australia Pty Limited (1994) 52 FCR 203; Jianshe Southern Pty Ltd v Turnbull Cooktown Pty Ltd (No 2) [2007] FCA 903 at [32] .
Case: Life Airbag Co of Australia Pty Ltd v Life Airbag Co (New Zealand) Ltd [1998] FCA 545
Outcome: referred to
The general rule under Order 62 rule 3(3) may be departed from where the party in whose favour the costs order was made was required by the interlocutory proceeding to "incur significant costs over and above those which it would have incurred had the opposing party acted with competence and diligence": Life Airbag Co of Australia Pty Ltd v Life Airbag Co (New Zealand) Ltd [1998] FCA 545 ; where the proceeding is complex and its final resolution is a long time away: Allstate Life Insurance Co v ANZ Banking Group Ltd [1995] FCA 660 ; Readymix Holdings International Pte Ltd v Wieland Process Equipment Pty Ltd [2006] FCA 1297: Courtney v Medtel Pty Ltd (No 3) [2004] FCA 347.
Case: McKellar v Container Terminal Management Services Ltd [1999] FCA 1639
Outcome: referred to
In McKellar v Container Terminal Management Services Ltd [1999] FCA 1639 , Weinberg J adopted the observation of Lindgren J in Allstate that: ... the power to order that costs be paid forthwith should perhaps be used less sparingly than it has been in the past. That is particularly so in lengthy and complex cases where substantial costs have been thrown away as a result of ill-considered pleadings being drawn. Such costs should be capable of being recovered without the innocent party having to wait, possibly for years, for that to occur.