Allergan Australia Pty Ltd v Self Care IP Holdings Pty Ltd (No 2)

Allergan Australia Pty Ltd and Self Care IP Holdings Pty Ltd were involved in a dispute concerning trademark infringement, misrepresentations under the Australian Consumer Law, passing-off claims, and infringements under the Therapeutic Goods Act. The case was heard in the Federal Court of Australia, where the court previously issued a costs order in favour of Self Care. This decision is an appeal against that costs order. The court was required to decide whether the previous costs order could be revisited under the slip rule in r 39.05(h) of the Federal Court Rules 2011 (Cth). The court also needed to determine if there was an error in the previous order and whether costs should be awarded on an indemnity basis, given that costs had not previously been sought on such a basis. Furthermore, the court examined whether Self Care unreasonably or impudently rejected multiple Calderbank offers, and if so, whether this would have affected the outcome.

The court found that there was no basis to award costs on an indemnity basis, as costs had not been previously sought on such a basis. However, the court applied the slip rule and vacated the previous costs order. The court reasoned that the unsuccessful party would not have been in a better position had they accepted the Calderbank offers, and the offers were not unreasonably or impudently rejected. A rough and ready allowance was made for the issues on which the predominantly successful party was unsuccessful, and costs were awarded on a lump sum basis to be quantified by agreement or the Registrar.

The final orders of the court were as follows:
1. Order 2 of the orders of 22 October 2020 is set aside.
2. Costs of this proceeding are costs in proceeding NSD15/2017.