Colgate-Palmolive Co v Cussons Pty ltd

COLGATE-PALMOLIVE COMPANY and COLGATE-PALMOLIVE PTY. LIMITED v. CUSSONS PTY.
LIMITED; CUSSONS PTY. LIMITED v. COLGATE-PALMOLIVE COMPANY and
COLGATE-PALMOLIVE PTY. LIMITED
No. NG594 of 1989
FED No. 801/93
Number of pages - 21
Costs
(1993) 46 FCR 225

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
SHEPPARD J

CATCHWORDS

Costs - application that respondent's costs of certain issues be paid on indemnity basis - discussion of applicable principles.

Federal Court of Australia Act 1976, ss.5, 23, 43.

Federal Court Rules, Order 62, rr.4, 12, 19 and Second Schedule.

HEARING

SYDNEY, 14 October 1993

#DATE 10:11:1993

Counsel for the Applicant Mr R.J. Ellicott, QC and
on Motion dated 9 July 1993 Mr A.J. Bannon
(the Respondent in the
principal proceedings):

Solicitors for the Applicant Allen Allen and Hemsley
on Motion dated 9 July 1993:

Counsel for the Respondents Mr D.K. Catterns, QC
to the Motion dated 9 July
1993 (the Applicants in the
principal proceedings):

Solicitors for the Respondents Mallesons Stephen Jaques
to the Motion dated 9 July 1993:

ORDER

The Court Orders that:-

1. The orders made on 11 May 1993 be varied by substituting for para. 5 thereof the following order:-

"5(a) The applicants pay to the respondent on the indemnity basis its costs of the issue relating to the use of unvented jars in testing flowability;

(b) Subject to para. 5(a), the applicants pay to the respondent its costs of the application and cross-claim on the party and party basis."

1. The applicants pay to the respondent one half of the respondent's costs of its notice of motion of 9 July 1993.

1. There be liberty to apply.

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

JUDGE1

(On respondent's application that costs of certain issues be taxed on the indemnity basis)

SHEPPARD J Reasons for judgment in this matter were published on 30 April 1993. Orders were made on 11 May 1993 giving effect to those reasons. The orders included orders that the applicants' application be dismissed and that the patent in suit, Australian letters patent no. 542136, be revoked. The latter order was stayed because of a foreshadowed appeal by the applicants. Paragraph 5 of the orders required the applicants to pay to the respondent its costs of the application and cross-claim. Paragraph 6 reserved liberty to the respondent, within 28 days after the disposal of all appeals from the orders, to apply for an order that the costs which the respondent was entitled to recover from the applicants be assessed or taxed on an indemnity basis insofar as those costs related to the issues of the use of unvented jars in testing flowability and whether the specification described or claimed in whole or in part an invention for a new and novel detergent composition. Paragraph 7 of the orders provided that, in the event that the respondent exercised the liberty to apply reserved in para. 6, the applicants had liberty to seek an order that…