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Idenix Pharmaceuticals LLC v Gilead Sciences Pty Ltd (No 2)

Idenix Pharmaceuticals LLC v Gilead Sciences Pty Ltd (No 2)

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FEDERAL COURT OF AUSTRALIA
Idenix Pharmaceuticals LLC v Gilead Sciences Pty Ltd (No 2) [2018] FCAFC 7

Appeal from: Gilead Sciences Pty Ltd v Idenix Pharmaceuticals LLC [2016] FCA 169

File number: NSD 640 of 2016

Judges: NICHOLAS, BEACH AND BURLEY JJ

Date of judgment: 2 February 2018

Catchwords: COSTS – discretion as to costs – applicable principles – where appeal was dismissed – where respondents’ notice of contention was dismissed – where grounds of contention did not occupy substantial time on the hearing of the appeal – whether costs order in favour of respondents should be reduced

Legislation: Federal Court of Australia Act 1976 (Cth) s 43

Cases cited:
AstraZeneca AB v Apotex Pty Ltd (2014) 226 FCR 324

Bowen Investments Pty Ltd v Tabcorp Holdings Ltd (No 2) [2008] FCAFC 107

Bradken Resources v Lynx Engineering Consultants (No 2) [2012] FCA 1478

Damorgold Pty Ltd v JAI Products Pty Ltd (No 2) [2014] FCA 377

Dodds Family Investment Pty Ltd (formerly Solar Tint Pty Ltd) v Lane IndustriesPty Ltd (1993) 26 IPR 261; [1993] FCA 346

Firebird Global Master Fund II Ltd v Republic of Nauru (No 2) (2015) 327 ALR 192; [2015] HCA 53

Garford Pty Ltd v Dywidag Systems International Pty Ltd (2015) 110 IPR 30; [2015] FCAFC 6

GG v Australian Crime Commission (No 2) [2010] FCAFC 63

H Lundbeck A/S v Alphapharm Pty Ltd (No 2) [2009] FCAFC 118

Hockey v Fairfax Media Publications Pty Ltd(No 2) (2015) 237 FCR 127

Idenix Pharmaceuticals LLC v Gilead Sciences Pty Ltd [2017] FCAFC 196

Les Laboratoires Servier v Apotex Pty Ltd (2016) 247 FCR 61

NV Sumatra Tobacco Trading Company v British American Tobacco Services Ltd [2011] FCA 1295

Regency Media Pty Ltd v MPEG LA, LLC (2014) 231 FCR 588

Ruddock v Vardarlis (No 2) (2001) 115 FCR 229

Sandvik Intellectual Property AB v Quarry Mining & Construction Equipment Pty Ltd (No 2) [2017] FCAFC 158

Date of hearing: Determined on the papers

Date of last submissions: 21 December 2017

Registry: New South Wales

Division: General Division

National Practice Area: Intellectual Property

Sub-area: Patents and associated Statutes

Category: Catchwords

Number of paragraphs: 16

Counsel for the Appellants: Mr AJL Bannon SC with Mr PW Flynn

Solicitor for the Appellants: Jones Day

Counsel for the Respondents: Mr DK Catterns QC, Mr C Dimitriadis SC and Mr NR Murray

Solicitor for the Respondents: Herbert Smith Freehills

ORDERS

NSD 640 of 2016

BETWEEN:
IDENIX PHARMACEUTICALS LLC

First Appellant

UNIVERSITA DEGLI STUDI DI CAGLIARI

Second Appellant

CENTRE NATIONAL DE LA RECHERCHE SCIENTIFIQUE (and others named in the Schedule)

Third Appellant

AND:
GILEAD SCIENCES PTY LTD (ACN 072 611 708)

First Respondent

GILEAD SCIENCES INC

Second Respondent

JUDGES:

NICHOLAS, BEACH AND BURLEY JJ

DATE OF ORDER:

2 FEBRUARY 2018

THE COURT ORDERS THAT:
1.The appellants pay 90% of the respondents’ costs of and incidental to the appeal including in relation to the notice of contention.

Note: Entry of orders is dealt with in Rule 39.32…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] FCAFC 7
Decision Date: 2 February 2018

CaseChat Overview and Summary

Idenix Pharmaceuticals LLC was the appellant in the case against Gilead Sciences Pty Ltd, which was the respondent. The dispute was an appeal concerning the costs incurred in relation to the case. The matter was heard in the High Court of Australia. The court was tasked with determining the appropriate allocation of costs between the parties involved in the appeal. Specifically, the court had to consider whether the costs order in favour of the respondents should be reduced due to the limited impact of the respondents’ notice of contention on the appeal's proceedings.

The High Court examined the principles applicable to the discretion regarding costs in appeals, particularly focusing on the extent to which the respondents' notice of contention affected the appeal's proceedings. The court noted that the appeal was dismissed, and the respondents' notice of contention was also dismissed. Furthermore, the court observed that the grounds of contention did not substantially occupy the time during the hearing of the appeal. Based on these factors, the court deliberated on whether the respondents were entitled to the full costs order or if a reduction was warranted due to the minimal contribution of the notice of contention to the appeal.

After considering the principles and the circumstances of the case, the High Court concluded that the costs order should be adjusted. The court decided that the appellants should pay 90% of the respondents' costs of and incidental to the appeal, including those related to the notice of contention. This decision reflects a balanced approach, taking into account the limited impact of the notice of contention while still recognising the respondents' overall success in the appeal.

The final orders of the court were that the appellants pay 90% of the respondents' costs of and incidental to the appeal, including in relation to the notice of contention. This order was made pursuant to Rule 39.32 of the Federal Court Rules 2011, which governs the entry of orders in such cases.

Orders

Orders of the court

1. The appellants pay 90% of the respondents’ costs of and incidental to the appeal including in relation to the notice of contention.

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

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Appeal from:	Gilead Sciences Pty Ltd v Idenix Pharmaceuticals LLC [2016] FCA 169
File number:	NSD 640 of 2016
Judges:	NICHOLAS, BEACH AND BURLEY JJ
Date of judgment:	2 February 2018
Catchwords:	COSTS – discretion as to costs – applicable principles – where appeal was dismissed – where respondents’ notice of contention was dismissed – where grounds of contention did not occupy substantial time on the hearing of the appeal – whether costs order in favour of respondents should be reduced
Legislation:	Federal Court of Australia Act 1976 (Cth) s 43
Cases cited:	AstraZeneca AB v Apotex Pty Ltd (2014) 226 FCR 324 Bowen Investments Pty Ltd v Tabcorp Holdings Ltd (No 2) [2008] FCAFC 107 Bradken Resources v Lynx Engineering Consultants (No 2) [2012] FCA 1478 Damorgold Pty Ltd v JAI Products Pty Ltd (No 2) [2014] FCA 377 Dodds Family Investment Pty Ltd (formerly Solar Tint Pty Ltd) v Lane IndustriesPty Ltd (1993) 26 IPR 261; [1993] FCA 346 Firebird Global Master Fund II Ltd v Republic of Nauru (No 2) (2015) 327 ALR 192; [2015] HCA 53 Garford Pty Ltd v Dywidag Systems International Pty Ltd (2015) 110 IPR 30; [2015] FCAFC 6 GG v Australian Crime Commission (No 2) [2010] FCAFC 63 H Lundbeck A/S v Alphapharm Pty Ltd (No 2) [2009] FCAFC 118 Hockey v Fairfax Media Publications Pty Ltd(No 2) (2015) 237 FCR 127 Idenix Pharmaceuticals LLC v Gilead Sciences Pty Ltd [2017] FCAFC 196 Les Laboratoires Servier v Apotex Pty Ltd (2016) 247 FCR 61 NV Sumatra Tobacco Trading Company v British American Tobacco Services Ltd [2011] FCA 1295 Regency Media Pty Ltd v MPEG LA, LLC (2014) 231 FCR 588 Ruddock v Vardarlis (No 2) (2001) 115 FCR 229 Sandvik Intellectual Property AB v Quarry Mining & Construction Equipment Pty Ltd (No 2) [2017] FCAFC 158
Date of hearing:	Determined on the papers
Date of last submissions:	21 December 2017
Registry:	New South Wales
Division:	General Division
National Practice Area:	Intellectual Property
Sub-area:	Patents and associated Statutes
Category:	Catchwords
Number of paragraphs:	16
Counsel for the Appellants:	Mr AJL Bannon SC with Mr PW Flynn
Solicitor for the Appellants:	Jones Day
Counsel for the Respondents:	Mr DK Catterns QC, Mr C Dimitriadis SC and Mr NR Murray
Solicitor for the Respondents:	Herbert Smith Freehills

JUDGES:	NICHOLAS, BEACH AND BURLEY JJ
DATE OF ORDER:	2 FEBRUARY 2018