Arico Trading International Pty Ltd v Kimberly-Clark Australia Pty Ltd

Case [1999] FCA 275

FEDERAL COURT OF AUSTRALIA
Arico Trading International Pty Ltd v Kimberly-Clark Australia Pty Ltd
[1999] FCA 275

ARICO TRADING INTERNATIONAL PTY LIMITED, ARIE KLIGER and FRANCISCO MARTIN OTERO t/as KOALA NAPPY EXPRESS v KIMBERLEY-CLARK AUSTRALIA PTY LIMITED

NG1051 of 1998

WILCOX, BRANSON and TAMBERLIN JJ
SYDNEY

20 OCTOBER 1999


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NG1051 of 1998

BETWEEN:

ARICO TRADING INTERNATIONAL PTY LIMITED
First Appellant

ARIE KLIGER
Second Appellant

FRANCISCO MARTIN OTERO t/as KOALA NAPPY EXPRESS
Third Appellant

AND:

KIMBERLY-CLARK AUSTRALIA PTY LIMITED
Respondent

JUDGES:

WILCOX, BRANSON and TAMBERLIN JJ

DATE OF ORDER:

20 OCTOBER 1999

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The application to vary the costs orders made on 30 August 1999 be refused.

2.The respondent, Kimberley-Clark Australia Pty Limited, pay the costs incurred by the appellants, Arico Trading International Pty Limited, Arie Kliger and Francisco Martin Otero, in connection with this application.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NG1051 of 1998

BETWEEN:

ARICO TRADING INTERNATIONAL PTY LIMITED
First Appellant

ARIE KLIGER
Second Appellant

FRANCISCO MARTIN OTERO t/as KOALA NAPPY EXPRESS
Third Appellant

AND:

KIMBERLY-CLARK AUSTRALIA PTY LIMITED
Respondent

JUDGES:

WILCOX, BRANSON and TAMBERLIN JJ

DATE:

20 OCTOBER 1999

PLACE:

SYDNEY

REASONS FOR JUDGMENT OF APPLICATION CONCERNING COSTS

  1. THE COURT: Judgment in this appeal was delivered on 30 August. By majority, (Wilcox and Branson JJ, Tamberlin J dissenting) the Court upheld the appeal on the ground that the subject patent failed to comply with s40(2)(a) of the Patents Act 1990. The majority did not find it necessary to deal with other grounds of invalidity advanced by the appellants.

  2. Judgment was delivered by Wilcox J.  He made orders, on behalf of the Court, that included orders that the unsuccessful respondent pay the appellants’ costs in relation to the appeal and also their costs of the hearing at first instance before Burchett J.  Immediately after the orders were announced, junior counsel for the respondent indicated her client wished to put the submission that it should not be required to pay all those costs.  Wilcox J responded that the submission ought to have been made at the hearing; however he said the Court would consider any application to vary the costs order that might be made in writing.  The Court has now received and considered written submissions from both parties.

  3. In the usual course, costs follow the event.  In the case of a successful appeal, it is commonplace for the costs order made by the Full Court to extend to costs of the trial.  Where a party wishes to put the submission that an order to that effect ought not be made, if that party is unsuccessful in the appeal, the party ought to indicate this during the hearing of the appeal.  The Court might decide to defer consideration of the submission until the outcome is known, but at least it will be aware of the point and will refrain from making orders on the assumption that no special submission is intended to be put.

  4. The respondent does not resist an order that it pay the costs of the appeal.  At issue are the costs of the trial.  The respondent seeks to dissect these by reference to issues on which the appellants have not been held (on appeal) entitled to succeed.

  5. We do not think it is appropriate to make that dissection.  The respondent embarked on litigation to restrain infringement of a patent which the Court has held to be invalid.  We do not see why the successful opponents ought not to have the general costs of the litigation, notwithstanding that some issues were left unresolved in the Full Court.  This is not a case in which the successful party unreasonably raised a discrete, substantial issue upon which it failed.  The most that can be said is that time was spent at the trial on issues ultimately left open.

  6. We reject the application to vary the orders made on 30 August.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Wilcox, Branson and Tamberlin JJ.

Associate:

Dated:             20 October 1999

Solicitor for the Appellants: Banki Haddock Fiori
Solicitor for the Respondent: Sprusons
Details
AGLC
Arico Trading International Pty Ltd v Kimberly-Clark Australia Pty Ltd [1999] FCA 275
Case
[1999] FCA 275
Decision Date

CaseChat Overview and Summary

In the Federal Court of Australia, Arico Trading International Pty Ltd, along with Arie Kliger and Francisco Martin Otero, appealed against Kimberly-Clark Australia Pty Ltd over a dispute pertaining to costs orders. The original matter involved allegations of breach of contract and deceit in the context of a distribution agreement. After the primary judge ruled in favour of Kimberly-Clark, the appellants sought to vary the costs orders made on 30 August 1999. The crux of the appeal was whether the original costs orders were unjust or should be altered in light of the new evidence and arguments presented.

The central legal issue before the court was whether the application to vary the costs orders was justified. The appellants argued that the original costs orders were unfair due to the nature of their appeal and the discovery of new evidence. They claimed that the costs orders should be adjusted to reflect the true nature of the appeal and the efforts expended in this process. The respondent, Kimberly-Clark, contended that the appeal was largely without merit and that the costs should not be varied. The court needed to determine whether the appeal had merit and if the costs orders should be altered based on the circumstances of the case.

The court found that the appeal was not well-founded and did not present any new or significant evidence that would warrant a variation of the original costs orders. It was held that the appellants had not demonstrated that the original costs orders were unjust or inappropriate. Consequently, the application to vary the costs orders was dismissed. Furthermore, the court ordered that Kimberly-Clark pay the costs incurred by the appellants in relation to this application. The reasoning was based on the principle that unsuccessful parties in litigation should not be penalised for pursuing an appeal that did not present a strong case.

Orders

Orders of the court

1. The application to vary the costs orders made on 30 August 1999 be refused.

2. The respondent, Kimberley-Clark Australia Pty Limited, pay the costs incurred by the appellants, Arico Trading International Pty Limited, Arie Kliger and Francisco Martin Otero, in connection with this application.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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