FEDERAL COURT OF AUSTRALIA
Davies v Lazer Safe Pty Ltd (No 2) [2019] FCAFC 118
Appeal from: Davies v Lazer Safe Pty Ltd [2018] FCA 702 File number: WAD 251 of 2018 Judges: GREENWOOD, WHITE AND BURLEY JJ Date of judgment: 12 July 2019 Catchwords: COSTS – costs following the event – appellants unsuccessful on appeal from patent infringement and respondent unsuccessful on cross-appeal on validity – whether to consider claim and cross-claim globally –appellants to pay the costs of the appeal and respondent to pay costs of the cross-appeal Cases cited: Bowen Investments Pty Ltd v Tabcorp Holdings Ltd (No 2) [2008] FCAFC 107
Damorgold Pty Ltd v Blindware Pty Ltd (No 2) [2018] FCA 364
Davies v Lazer Safe Pty Ltd [2019] FCAFC 65
Idenix Pharmaceuticals LLC v Gilead Sciences Pty Ltd (No 2) [2018] FCAFC 7
Les Laboratoires Servier v Apotex Pty Ltd [2016] FCAFC 27; 247 FCR 61
PAC Mining Pty Ltd v Esco Corporation (No 2) [2009] FCAFC 52
Date of hearing: 25 February 2019 Date of last submissions: 24 May 2019 Registry: New South Wales Division: General Division National Practice Area: Intellectual Property Sub-area: Patents and Associated Statutes Category: Catchwords Number of paragraphs: 11 Counsel for the Appellants: Mr M. F. Holler Solicitor for the Appellants: Morgan Alteruthemeyer Counsel for the Respondent: Mr G. Fitzgerald QC with Mr D. W. Thompson Solicitor for the Respondent: Provan Legal Pty Ltd ORDERS
WAD 251 of 2018 BETWEEN: KEVIN STEPHEN DAVIES
First Appellant/First Cross-Respondent
TRICLOPS TECHNOLOGIES PTY LTD
Second Appellant/Second Cross-Respondent
AND: LAZER SAFE PTY LTD
Respondent/Cross-Appellant
JUDGES:
GREENWOOD, WHITE AND BURLEY JJ
DATE OF ORDER:
12 JULY 2019
THE COURT ORDERS THAT:
1.The appellants pay the costs of the appeal.
2.The cross-appellant pay the costs of the cross-appeal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
THE COURT:
On 26 April 2019 the Court delivered judgment in Davies v Lazer Safe Pty Ltd [2019] FCAFC 65, ordering that the appeal and cross-appeal be dismissed. The parties were given the opportunity to provide submissions as to costs, and they have done so. We now address the question of costs in the appeal and the cross-appeal. These reasons assume familiarity with the substantive judgment and adopt the defined terms used therein.
By way of summary, the substantive proceedings concerned the construction of certain integers of the Patent, which relates to a safety system for use with machinery. The appellants challenged the primary judge’s construction of integers (1.5) and (1.6) of claim 1 of the Patent on the basis that it was too narrow. They contended that the primary judge erred in finding that the impugned Lazer Safe Systems had not infringed the asserted claims. Lazer Safe filed a cross-appeal on the basis that if the broader construction advanced by the appellants on appeal was accepted,…
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- Case
- [2019] FCAFC 118
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether the claim and cross-claim should be considered globally in determining the costs, and if so, what the appropriate costs order should be given the outcomes of the appeal and cross-appeal. The appellants were unsuccessful on their appeal regarding the patent infringement, while the respondent was unsuccessful on their cross-appeal concerning the validity of the patent. The High Court was tasked with deciding the appropriate costs order in light of these outcomes.
In its decision, the court concluded that the claim and cross-claim should be considered globally to ensure a fair and just outcome. Given that the appellants were unsuccessful on their main appeal, they were ordered to pay the costs of the appeal. Conversely, because the respondent was unsuccessful on their cross-appeal, they were ordered to pay the costs of the cross-appeal. The court's decision balanced the outcomes of both the appeal and cross-appeal to arrive at a just and equitable costs order.
The final orders of the court mandated that the appellants pay the costs of the appeal and the respondent pay the costs of the cross-appeal. This ruling followed the principles outlined in Rule 39.32 of the Federal Court Rules 2011, which governs the entry of orders in such circumstances.
Orders
Orders of the court
1. The appellants pay the costs of the appeal.
2. The cross-appellant pay the costs of the cross-appeal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
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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