I now provide my reasons for the determination of the issue of costs of these proceedings.
validity of not only the two designs but also the patent.
Those issues covered quite a wide area as far as the conduct
of the trial was concerned.
The applicant failed in its application in respect of its contention that there had been infringement of the wheelchair chassis design and in its contention that its petty patent had been in£ ringed. It may be seen that the combination of those matters in the one pleading involved certain overlapping. Although some distinct issues were raised in respect of the matter of the wheelchair chassis design, as I have indicated in comments to counsel, I am not of the view that such issues in respect of the wheelchair chassis design occasioned any extra or, in any sense, unnecessary time as far as the hearing was concerned. The fact that the respondent succeeded in resisting the claim that that design had been infringed would not entitle any reduction of the costs to be recovered by the applicant.
However, in respect of the matter of the infringement of the patent, there was a discernible area of
the trial which related to quite specific issues which arose
in the course of the hearing which bore no connection with
other issues that had arisen and although there was much interweaving of the issues raised in the defence and cross- claim with issues raised on the application, there still remained a specific separate area in relation to the matter of patent infringement. As Mr McCormack has most properly
acknowledged, it was a discrete area and although it may be slightly unusual I am of the view that it would be appropriate in this case to make some reduction in the taxed costs of the application that the applicant would otherwise recover. However, I agree again with Mr McCormack that the amount of reduction should not exceed 10 per cent. I am quite satisfied that the order which would adequately reflect the way in which the costs of the application should be borne would be to reduce the cost of the application by 10 per cent after the same have been taxed. That is the order I propose to make, namely that the respondent pay 90 per cent of the applicant's taxed costs of the application including reserved costs.
The applicant succeeded on the question of infringement of the wheelchair design and also succeeded in contesting defences to its application relating to the
I certify that the preceding
three (3) pages are a true copy of the
Reasons for Judgment of his Honour Mr Justice Lee.
Counsel for the Applicant: Mr R.J.L. McCormack
Solicitors for the Applicant: Parker & Parker
Counsel for the Respondent: MS L. Evans Solicitors for the Respondent: Robinson Cox
Date of Hearing: 19 October 1990 Date of Judgment: 19 October 1990
Details
AGLC
Avion Engineering Pty Ltd v Fisher & Paykel Healthcare Pty Ltd [1990] FCA 807
Case
[1990] FCA 807
Decision Date
CaseChat Overview and Summary
Avion Engineering Pty Ltd took legal action against Fisher & Paykel Healthcare Pty Ltd in the Federal Court of Australia, Western Australia District Registry, over alleged infringement of a wheelchair chassis design and a petty patent. Fisher & Paykel Healthcare Pty Ltd responded by denying the infringement and also brought a cross-claim against Avion Engineering Pty Ltd. The case was presided over by Justice Lee, who delivered his reasons for judgment on the issue of costs.
The court needed to decide the allocation of costs between the parties. This included determining whether the overlapping issues of design and patent infringement led to any unnecessary time being taken during the trial and if so, whether this warranted a reduction in the costs awarded to the applicant. The court had to balance the necessity of addressing overlapping issues against the need to avoid wasting court time.
Justice Lee found that while the overlapping issues of design and patent infringement did not lead to any unnecessary time being taken in the trial, there was a distinct area of patent infringement that was unrelated to other issues. Given the discrete nature of this area, the court decided to reduce the applicant's taxed costs by 10% to reflect the appropriate allocation of costs. The court concluded that this reduction adequately balanced the need to address overlapping issues while acknowledging the separate nature of the patent infringement claims.
The final order was that Fisher & Paykel Healthcare Pty Ltd would pay 90% of Avion Engineering Pty Ltd's taxed costs of the application, including reserved costs.