InterPharma Pty Ltd v Hospira, Inc (No 2)

FEDERAL COURT OF AUSTRALIA

InterPharma Pty Ltd v Hospira, Inc (No 2) [2017] FCA 1280

File number:

VID 885 of 2017

Judge:

KENNY J

Date of judgment:

1 November 2017

Catchwords:

COSTS – held costs of interim injunction application be reserved

Legislation:

Federal Court of Australia Act 1976 (Cth)

Cases cited:

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

Resort Hotels Management Pty Ltd v Resort Hotels of Australia Pty Ltd (1991) 22 NSWLR 730

Date of hearing:

Determined on the papers

Registry:

Victoria

Division:

General Division

National Practice Area:

Intellectual Property

Sub-area:

Patents and associated Statutes

Category:

Catchwords

Number of paragraphs:

9

Counsel for the Cross-Claimants:

Mr T Cordiner QC with Ms K Beattie

Solicitor for the Cross-Claimants:

Minter Ellison

Counsel for the Cross-Respondent:

Ms H Rofe QC with Mr C Thompson

Solicitor for the Cross-Respondent:

Stephens Lawyers & Consultants

ORDERS

VID 885 of 2017

BETWEEN:

INTERPHARMA PTY LTD (ACN 099 877 899)

Applicant

AND:

HOSPIRA, INC

Respondent

AND BETWEEN:

HOSPIRA, INC (and another named in the Schedule)

First Cross-Claimant

AND:

INTERPHARMA PTY LTD (ACN 099 877 899)

Cross-Respondent

JUDGE:	KENNY J
DATE OF ORDER:	1 NOVEMBER 2017

THE COURT ORDERS THAT:

1.The costs of the application for an interim injunction dated 6 September 2017 be reserved.

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

REASONS FOR JUDGMENT

KENNY J:

INTRODUCTION

1. On 11 September 2017, on the application of  Hospira, Inc and Pfizer Australia Pty Ltd (collectively, Pfizer), the Court granted interim injunctive relief restraining InterPharma Pty Ltd (InterPharma) from offering to supply and supplying certain products (the InterPharma Products) until the hearing and determination of Pfizer’s claim for interlocutory injunctive relief.  This is set down for hearing on 23 November 2017.

2. Also on 11 September 2017, the Court ordered that:

   Unless a party notifies the Court in writing by 4:00 pm on 13 September 2017 that it opposes this order as to costs, the cross-respondent pay the cross-claimants’ costs of the application for interim injunction, as agreed or taxed.

3. InterPharma duly notified the Court that it opposed the making of an order that it pay Pfizer’s costs of the application for interim injunctive relief.  The parties subsequently filed written submissions on the appropriate costs order.

   COMPETING SUBMISSIONS AS TO COSTS

4. By its written submissions, InterPharma contended that costs should be reserved, essentially because relief had in the present case only been obtained on an interim basis, noting that the purpose of such relief was to preserve the status quo in order that the interlocutory application was not frustrated.

5. Pfizer submitted in written submissions that the justice of the case warranted an order that InterPharma pay its costs of the application for an interim injunction, because, amongst other factors, that relief was necessary to restrain InterPharma from launching and selling the InterPharma Products, thereby “rendering nugatory the hearing of the interlocutory injunction application on 23 November 2017”; and InterPharma “actively contested the application and…