Domino's Pizza Enterprises Limited v Precision Tracking Pty Ltd (No 7)

[2018] FCA 1160

FEDERAL COURT OF AUSTRALIA

Domino’s Pizza Enterprises Limited v Precision Tracking Pty Ltd (No 7) [2018] FCA 1160

File number:	NSD 516 of 2016
Judge:	ROBERTSON J
Date of judgment:	8 August 2018
Date of hearing:	Determined on the papers
Date of last submissions:	1 August 2018
Registry:	New South Wales
Division:	General Division
National Practice Area:	Intellectual Property
Sub-area:	Patents and associated Statutes
Category:	No Catchwords
Number of paragraphs:	9
Counsel for the Applicant/First Cross-Respondent to the First Cross-Claim:	Mr A Coleman SC with Mr TD Cordiner QC
Solicitor for the Applicant/ First Cross-Respondent to the First Cross-Claim:	DLA Piper Australia
Counsel for the Respondents/ Cross-Claimant of the First Cross-Claim/Cross-Respondent to the Second Cross-Claim:	Mr RJ Webb SC with Dr AR Hughes
Solicitor for the Respondents/Cross-Claimant of the First Cross-Claim/Cross-Respondent to the Second Cross-Claim:	Allens
Counsel for the Second Cross-Respondent to the First Cross-Claim/Cross Claimant of the Second Cross-Claim:	Mr J Collins
Solicitor for the Second Cross-Respondent to the First Cross-Claim/Cross Claimant of the Second Cross-Claim:	Clayton Utz

ORDERS

NSD 516 of 2016

BETWEEN:

DOMINO'S PIZZA ENTERPRISES LIMITED (ACN 010 489 326)

Applicant

AND:

PRECISION TRACKING PTY LTD (ACN 133 616 369)

First Respondent

VLADIMIR LASKY

Second Respondent

NATHAN PARROTT (and others named in the Schedule)

Third Respondent

AND BETWEEN:

PRECISION TRACKING PTY LTD (ACN 133 616 369)

Cross-Claimant of the First Cross-Claim

AND:

DOMINO'S PIZZA ENTERPRISES LTD (and another named in the Schedule)

First Cross-Respondent to the First Cross-Claim

AND BETWEEN:

NAVMAN WIRELESS AUSTRALIA PTY LTD (ACN 123 981 457)
Cross-Claimant of the Second Cross-Claim

AND:

PRECISION TRACKING PTY LTD (ACN 133 616 369)
Cross-Respondent to the Second Cross-Claim

JUDGE:	ROBERTSON J
DATE OF ORDER:	8 AUGUST 2018

THE COURT ORDERS THAT:

1.Each party bear its or his own costs of the interlocutory application filed on 30 May 2018.

2.Those costs are to include the costs of the respondents’ application for an order that the applicant pay the respondents’ costs of the interlocutory application.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

ROBERTSON J:

1. On 19 June 2018 I made orders and gave reasons in relation to an interlocutory application brought by Domino’s to amend its pleadings and for further discovery: Domino’s Pizza Enterprises Limited v Precision Tracking Pty Ltd (No 6) [2018] FCA 910.

2. At [39] of those reasons, I said:

   I will, if necessary, hear the parties in relation to costs.  I indicate that my present provisional view is that, in light of the mixed success of the parties on Domino’s interlocutory application, there should be no order as to costs of the interlocutory application except that Domino’s should pay Precision Tracking’s costs, if any, thrown away by reason of the amendments to the pleadings which I have allowed.

3. Orders 8 and 9 were in the following form:

   8.Subject to order 9, each party bear its or his own costs of the interlocutory application fled on 30 May 2018.

   9.If any of the parties wishes to contend for a different costs order, they are to notify my associate and the other parties and thereafter directions will be made for the exchange of short written submissions and the determination of that issue on the papers.

4. On 24 July 2018, the respondents gave notice pursuant to order 9 that they wished to contend for a different costs order to that in order 8. 

5. Having considered the respondents’ submissions on costs dated 25 July 2018 and Domino’s submissions in answer dated 1 August 2018, including the correspondence referred to at [5.1] of those submissions in answer, I have concluded that the parties had mixed success on Domino’s interlocutory application, leaving aside order 7 made on 19 June 2018 that the applicant was to pay the respondents’ costs thrown away, if any, by reason of the amendments I did allow.  Order 7 was not the subject of leave to contend for a costs order different to the order I indicated provisionally I would make.

6. The order I make is:

   Each party bear its or his own costs of the interlocutory application filed on 30 May 2018.

7. This leaves for consideration the disposition of the parties’ costs of the application by the respondents for their costs.

8. In my opinion the costs of the application for a costs order should form part of the disposition of the costs of the interlocutory application and accordingly each party should bear its or his own costs in that respect.  The views I provisionally expressed were just that, provisional, and I do not consider that any different disposition of the argument about costs is warranted.

9. The orders that I make therefore are:

   1.Each party bear its or his own costs of the interlocutory application filed on 30 May 2018.

   2.Those costs are to include the costs of the respondents’ application for an order that the applicant pay the respondents’ costs of the interlocutory application.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Robertson.

Associate:

Dated:       8 August 2018

SCHEDULE OF PARTIES

NSD 516 of 2016
Respondents
Fourth Respondent:	ALEXANDER GREEN
Fifth Respondent:	DELIVERY COMMAND PTY LTD
Cross-Respondents
Second Cross-Respondent to the First Cross-Claim	NAVMAN WIRELESS AUSTRALIA PTY LTD (ACN 123 981 457)