FEDERAL COURT OF AUSTRALIA
Hells Angels Motorcycle Corporation (Australia) Pty Limited v Redbubble Limited [2019] FCA 1349
File number(s): QUD 902 of 2015 Judge(s):s GREENWOOD J Date of judgment: 21 August 2019 Catchwords: COPYRIGHT – consideration of the disposition of the costs of the principal proceeding
TRADE MARKS – consideration of the disposition of the costs of the principal proceeding
Legislation: Federal Court of Australia Act 1976 (Cth), s 43 Cases cited: Foots v Southern Cross Mine Management Pty Ltd (2007) 234 CLR 52
Hells Angels Motorcycle Corporation (Australia) Pty Limited v Redbubble Limited [2019] FCA 355
Kazar v Kargarian [2011] FCAFC 136; (2011) 197 FCR 113
Northern Territory v Sangare [2019] HCA 25
Oshlack v Richmond River Council (1998) 193 CLR 72
Pokémon Company International, Inc. v Redbubble Ltd (2017) 351 ALR 676
Date of hearing: 26 July 2019 Date of last submissions: 26 July 2019 Registry: Queensland Division: General Division National Practice Area: Intellectual Property Sub-area: Copyright and Industrial Designs Category: Catchwords Number of paragraphs: 48 Counsel for the Applicant/Cross Respondent: Mr D Eliades with Mr J Linklater-Steele Solicitor for the Applicant/Cross Respondent: Solus IP Pty Ltd Counsel for the First Respondent/Cross Claimant: Mr R Cobden SC with Ms E Bathurst Solicitor for the First Respondent/Cross Claimant: Allens ORDERS
QUD 902 of 2015 BETWEEN: HELLS ANGELS MOTORCYCLE CORPORATION (AUSTRALIA) PTY LIMITED ACN 123 059 745
Applicant
AND: REDBUBBLE LIMITED ACN 119 200 592
First Respondent
HELLS ANGELS MOTORCYCLE CORPORATION
Second Respondent
AND BETWEEN: REDBUBBLE LIMITED ACN 119 200 592
Cross-Claimant
AND: HELLS ANGELS MOTORCYCLE CORPORATION
Cross-Respondent
HELLS ANGELS MOTORCYCLE CORPORATION (AUSTRALIA) PTY LTD ACN 123 059 745
Other
JUDGE:
GREENWOOD J
DATE OF ORDER:
21 AUGUST 2019
THE COURT ORDERS THAT:
1.Subject to Order 2, the first respondent pay 65% of the applicant’s costs of and incidental to the proceeding.
2.The first respondent pay the costs of the applicant of and incidental to the cross‑claim by the first respondent.
3.The applicant pay the costs of the first respondent of and incidental to the applicant’s application for summary judgment, limited to those costs thrown away by reason of the application.
4.There be no order as to costs in relation to the application by the first respondent for an order for security for costs.
5.Pursuant to s 23 and s 37P of the Federal Court of Australia Act 1976 (Cth), rule 1.32 and rule 1.36 of the Federal Court Rules 2011, these orders and the reasons for judgment in support of these orders are made and published from Chambers.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
GREENWOOD J:
These proceedings are concerned with the resolution and disposition of the outstanding question of costs of and incidental to the principal proceeding. These reasons are to be read in conjunction with the orders and reasons for judgment made in the principal proceeding (the “principal judgment”): Hells Angels Motorcycle Corporation (Australia) Pty Limited v Redbubble Limited [2019] FCA 355
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- AGLC
- Hells Angels Motorcycle Corporation (Australia) Pty Limited v Redbubble Limited [2019] FCA 1349
- Case
- [2019] FCA 1349
- Decision Date
CaseChat Overview and Summary
The primary legal issues the court had to resolve were whether Redbubble had indeed infringed the plaintiff's copyright and trade marks and, if so, what the appropriate disposition of costs should be in light of the outcomes of both the principal proceeding and the subsequent applications for summary judgment and security for costs. The court needed to consider the principles governing the allocation of costs in litigation, particularly in cases where one party had largely succeeded while the other had made unsuccessful applications.
In its decision, the court found that Redbubble had infringed the plaintiff's copyright and trade marks. Regarding the costs, the court held that the plaintiff was entitled to a significant portion of its costs from Redbubble, specifically 65%, due to the successful nature of the principal proceeding. Additionally, the plaintiff was awarded costs relating to Redbubble's cross-claim, while Redbubble was awarded limited costs relating to the plaintiff's application for summary judgment. No costs were awarded in relation to Redbubble's application for security for costs, as it was deemed unsuccessful.
The final orders of the court specified the exact percentages and amounts of costs to be paid by each party, reflecting the outcomes of the various applications and proceedings. The court also noted that these orders and the accompanying reasons were made from Chambers and would be published in accordance with relevant statutes and rules of court.
Orders
Orders of the court
1. Subject to Order 2, the first respondent pay 65% of the applicant’s costs of and incidental to the proceeding.
2. The first respondent pay the costs of the applicant of and incidental to the cross‑claim by the first respondent.
3. The applicant pay the costs of the first respondent of and incidental to the applicant’s application for summary judgment, limited to those costs thrown away by reason of the application.
4. There be no order as to costs in relation to the application by the first respondent for an order for security for costs.
5. Pursuant to s 23 and s 37P of the Federal Court of Australia Act 1976 (Cth), rule 1.32 and rule 1.36 of the Federal Court Rules 2011, these orders and the reasons for judgment in support of these orders are made and published from Chambers.
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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