Gang-Nail Australia Ltd v Multinail Truss Systems Pty Lyf

[1992] FCA 26

JUDGMENT No. .?~k .... / - . 2 . ~

IN THE FEDERAL COURT	1
OF AUSTRALIA	1
VICTORIA DISTRICT REGISTRY	1
GENERAL DIVISION	1 No. VG 305 of 1989
BETWEEN:

GANG-NAIL AUSTRALIA LTD.

Applicant

- and -

MULTINAIL TRUSS SYSTEMS PTY. LTD.

Firstnamed Respondent

- and -
HYDRO-AIR AUSTRALIA PTY. LTD.

Secondnamed Respondent

Coram:	Olney J
Place:	Melbourne
Date :	3 February 1992

EX TEMPORE DECISION

The principles that I apply are these. First, the applicant was successful in obtaining judgment in respect of an the consequences that flow from that success in terms of infringement in respect of the PT plates and is entitled to

The question of costs was reserved at the time judgment in this matter was handed down in order to afford the parties an opportunity to consider their positions. Having now heard argument I propose to rule on the question.

having its damages, if it suffered any, appropriately determined or else an account taken. The case ran for a substantial period, mainly because there was another issue involved - namely, the question of infringement of the P and

MN plates, upon which the applicant was unsuccessful.

Nevertheless, the applicant was forced to court and at the end of the day enjoyed some success. My first conclusion is that the applicant ought to have an order for costs.

Second, it is sometimes appropriate in a case where the issues are very readily discernible and where it is possible to say that part of the case had to do with one specific issue and part had to do with another to make some adjustment to the normal order that costs follow the event so as to take account of the fact that the applicant, in respect of the unsuccessful issues, has kept the Court and the other party engaged for an unnecessarily long period of time. The appropriate way to do this is to make some order discounting the costs which would otherwise be recoverable.

expert evidence. Expert witnesses' statements were prepared	In this particular case there was a considerable amount of
in advance of the trial- and the experts were called and cross-examined. That took up a very substantial part of the hearing time. It seems to me that to be fair, the cost to the applicant of obtaining the expert evidence on the general issue upon which the applicant was unsuccessful is not something that ought to be carried by the respondent, either

entirely or proportionately.

Further, having heard argument and recognising that it is a difficult issue, but nevertheless comforted by the fact that it is a matter entirely within my discretion, I have reached the conclusion that the applicant should have 75 per cent of the balance of its costs, that is its costs after excluding from the taxation the costs of the preparation of the applicant's expert witness statement. I appreciate the point that the applicant's expert witness statement also touched upon the issue on which the applicant has been successful but that was only a very minor part of the evidence. Although I have taken an arbitrary approach I believe that I have achieved a reasonably fair result. There will be an order accordingly.

I certify that this and the preceding 2 pages is a true copy of the Ex Tempore Decision of the Honourable Mr. Justice Olney

Associate: G%&- .

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Dated: - 1 7 4 3

Heard:	3 February 1992
Place:	Melbourne
Counsel for the applicant:	Mr. D. Shavin

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Solicitors for the applicant:	Darvall McCutcheon
Counsel for the respondents:	Mr. B.N. Caine

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Solicitors for the respondents:  Minter Ellison