FEDERAL COURT OF AUSTRALIA
Cultivaust Pty Ltd v Grain Pool Pty Ltd [2004] FCA 1568
COSTS – party and party costs – indemnity costs – exercise of discretion to award costs – effect of rejecting an offer of compromise on costs orders – whether case had any real prospects of success on certain issues – apportioning costs on an ‘issues’ basis
Plant Variety Rights Act 1987 (Cth)
Plant Breeder’s Rights Act 1994 (Cth)
Trade Practices Act 1974 (Cth)
Federal Court of Australia Act 1976 (Cth) s 43
Grain Marketing Act 1975 (WA)
Limitation Act 1935 (WA) s 47A
Federal Court Rules O 23, O 62 r 31Calderbank v Calderbank [1975] 3 All ER 333 referred to
Ruddock v Vadarlis (2001) 115 FCR 229 referred to
Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 referred to
John S Hayes and Associates Pty Ltd v Kimberley-Clarke Australia Pty Ltd (1994) 52 FCR 201 referred to
J-Corp Pty Ltd v Australian Builders Labourers Federated Union of Workers (No 2) (1993) 46 IR 301 referred to
NMFM Property Pty Ltd v Citibank Ltd (2001) 109 FCR 77 referred to
De Alwis v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 77 referred to
Perre v Apand Pty Ltd [2004] FCA 881 referred to
Dr Martens Australia Pty Ltd v Figgins Holdings Pty Ltd (No 2) [2000] FCA 602 referred to
Yates Property Corp Pty Ltd v Boland (No 2) (1997) 147 ALR 685 referred to
Oshlack v Richmond River Council (1998) 193 CLR 72 referred to
Melbourne Steamship Co Ltd v Moorehead (1912) 15 CLR 333 referred to
Re Wilcox: Ex parte Venture Industries Pty Ltd (No 2) (1996) 72 FCR 151 applied
Cretazzo v Lombardi (1975) 13 SASR 4 referred to
Australian Conservation Foundation v Forestry Commission (1988) 81 ALR 166CULTIVAUST PTY LTD & THE STATE OF TASMANIA v GRAIN POOL PTY LTD & THE STATE OF WESTERN AUSTRALIA
SAD 104 of 1999
(Consolidated with No SAD 66 of 2001)MANSFIELD J
3 DECEMBER 2004
ADELAIDE
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
SAD 104 OF 1999
BETWEEN:
CULTIVAUST PTY LTD
FIRST APPLICANTTHE STATE OF TASMANIA
SECOND APPLICANTAND:
GRAIN POOL PTY LTD
FIRST RESPONDENTTHE STATE OF WESTERN AUSTRALIA
SECOND RESPONDENTJUDGE:
MANSFIELD J
DATE OF ORDER:
3 DECEMBER 2004
WHERE MADE:
ADELAIDE
THE COURT ORDERS THAT:
1.Subject to paragraph 2 hereof, the applicants pay to the first respondent costs of the proceedings, including reserved costs on a party and party basis.
2.The applicants pay to the first respondent costs in respect of the following claims brought by applicants:
(a)the breach of contract claim as pleaded at paragraphs 24, 25, 26 and 39 – 43, 44(d) and 71(e) of the amended consolidated statement of claim filed pursuant to leave granted on 20 March 2002 (the ACSC); and
(b)the estoppel claim as pleaded in paragraphs 23, 25, 26, 27, 32A, 32B, 35A, 35B and 71(e) of the ACSC; and
(c)the unlawful interference claim…
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- Case
- [2004] FCA 1568
- Decision Date
CaseChat Overview and Summary
The legal issues the court had to decide included whether the applicants were entitled to indemnity costs for their unsuccessful claims, specifically regarding the alleged infringement of plant variety rights and the broader indemnity costs sought by the respondents. The applicants had maintained the claim for infringement of plant variety rights until final submissions, despite indications that it might not be pursued. The respondents argued that the refusal of a Calderbank offer to settle the matter overall entitled them to indemnity costs from a reasonable time after the offer was made. The court needed to consider the reasonableness of the applicants' claims and whether the circumstances warranted an order for indemnity costs.
Justice von Doussa concluded that while the applicants' claim for infringement of plant variety rights was not entirely without merit, it was not so lacking in prospects of success as to warrant the grant of indemnity costs. The legislation was complex, and the applicants had not acted unreasonably in maintaining the claim. The court found that the Calderbank offer, which did not specifically address the plant variety rights claim, did not directly support an indemnity costs order for any particular cause of action. However, it was considered in a general sense when deciding whether to award indemnity costs. The court also examined the other claims brought by the applicants, including the breach of contract, estoppel, and unlawful interference claims.
Ultimately, the court ordered that the applicants pay the respondents' costs, including reserved costs, for specific claims related to breach of contract, estoppel, and unlawful interference. The court also granted certificates for one senior counsel and one junior counsel for the first respondent and ordered that the applicants pay the second respondent's costs, including those incurred during the proceedings in the High Court of Australia.
Orders
Orders of the court
1. Subject to paragraph 2 hereof, the applicants pay to the first respondent costs of the proceedings, including reserved costs on a party and party basis.
2. The applicants pay to the first respondent costs in respect of the following claims brought by applicants:
(a) the breach of contract claim as pleaded at paragraphs 24, 25, 26 and 39 – 43, 44(d) and 71(e) of the amended consolidated statement of claim filed pursuant to leave granted on 20 March 2002 (the ACSC); and
(b) the estoppel claim as pleaded in paragraphs 23, 25, 26, 27, 32A, 32B, 35A, 35B and 71(e) of the ACSC; and
(c) the unlawful interference claim as pleaded in paragraphs 28 – 29E, 44(e) and 71(e) of the ACSC only insofar as that claim related to dealing with the New South Wales Grains Board;
including reserved costs to the extent that such costs are shown by the first respondent to have been incurred only in respect of those claims, on the basis that such costs are to include all costs so incurred by the first respondent except insofar as they are of an unreasonable amount or were unreasonably incurred so that, subject to such exceptions, and upon the basis so specified, the first respondent will be completely indemnified by the applicants for its costs.
3. Certificates be granted for one senior counsel and one junior counsel for the first respondent.
4. The applicants pay to the second respondent costs of the proceedings (including the costs of the proceedings whilst in the High Court of Australia), including any reserved costs on a party and party basis.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Established by: MANSFIELD J
In the light of those general observations, I shall now turn to consider the particular issues which require to be addressed.CONSIDERATION1. The claim for infringement of the PBR Act The claim that the first respondent had contravened the applicants’ PVR was maintained throughout the proceedings until the final submissions. Senior counsel for the applicants in opening indicated that the claim may not have been pursued, but it was not formally abandoned, and the respondents had no reason not to continue to resist it during the course of the evidence. However, subject to one qualification, I do not think the circumstances are such as to lead to an order for indemnity costs in respect of this claim. The first reason for that conclusion is that I am not persuaded that the ultimate abandonment of the claim in this instance leads to the view that, from its inception, the applicants were unreasonable in making the claim or in maintaining it. The legislation is quite complex. The concepts within it are difficult. The legislation had not been the subject of any relevant earlier judicial determination. The determination of the PBR infringement claim itself involved careful consideration of the relevant provisions of the PVR Act, and of the PVR of the applicants. I do not categorise the PVR part of this claim as being so lacking in prospects of success as to warrant the grant of indemnity costs to the first respondent. I am also mindful of the desirability of the applicants proving the history of the development of Franklin barley, so as to establish the existence of PVR and then PBR in Franklin barley in any event. That is, much of the evidence going to the establishment of PVR in Franklin barley would have been adduced to establish the existence of PBR in Franklin barley. The evidence as to the introduction of Franklin barley into Western Australia would also have been appropriately adduced even if no claim based upon PVR had been made. I do not think that it would be at all easy to unravel the preparatory work, or the parts of the trial, which went only to resist the claim based upon infringement of PVR in those circumstances. Indeed, for the reasons I have given, I think that work would be relatively small in the overall picture, although I accept that the first respondent might be able on taxation to demonstrate some such work. As noted above, the first respondent does not claim that the refusal of the Calderbank offer entitles it to indemnity costs generally against the applicants from a reasonable time after the offer was made. The Calderbank offer was to settle the matter overall. It contained no proposal dealing discretely with this claim, or any other of the causes of action pleaded. It does not therefore directly enter the scales in favour of an indemnity costs order with respect to any particular cause of action. I have, however, taken it into account in a general way when undertaking the exercise of my discretion whether to award indemnity costs in respect of the several claims for which indemnity costs are sought.