Avion Engineering Pty Ltd v Fisher & Paykel Healthcare Pty Ltd

[1990] FCA 807

4 . 1 . , ,,

JUDGMENT No. 8Q7../ q ~ _ *

IN THE FEDERAL COURT	)	NOT FOR DISTRIBUTION
OF AUSTRALIA	)
WESTERN AUSTRALIA	)
DISTRICT REGISTRY	)
GENERAL DIVISION	)	NO. WAG 99 OF 1989
B E T W E E N :	AVION ENGINEERING PTY. LTD.

Applicant

and

FISHER & PAYKEL HEALTHCARE

PTY. LTD.

Respondent

and

FISHER & PAYKEL HEALTHCARE

PTY. LTD.

Cross-Claimant

and

AVION ENGINEERING PTY. LTD.

Cross-Respondent

CORAM: LEE J.

DATE : 19 OCTOBER 1990

EX TEMPORE REASONS FOR JUDGMENT

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