InterPharma Pty Ltd v Hospira, Inc (No 4)

In the matter of InterPharma Pty Ltd v Hospira, Inc (No 4), the Federal Court of Australia considered the costs associated with several interlocutory applications, including an application for an interlocutory injunction, an interim injunction, and an application to discharge the interim injunction. The central issue before the court was the appropriate allocation of costs for these interlocutory applications, particularly in light of the potential for the patent in question to be declared invalid upon trial. The court was required to balance the principles of costs allocation in interlocutory applications against the potential risk to a party of bearing costs if ultimately unsuccessful at trial.

The court held that the appropriate order for the costs of the interlocutory applications would be for each party to bear its own costs. This decision was grounded in the understanding that interlocutory applications are often provisional assessments of the merits and the balance of convenience, and that the ultimate outcome at trial may differ significantly. The court referred to precedents such as JT Stratford & Son Limited v Lindley, ACD Tridon Inc v Tridon Australia Pty Ltd, and Jadwan Pty Ltd v Rae & Partners, which support the principle that costs should reflect the provisional nature of interlocutory decisions. The court also acknowledged that, in cases involving pharmaceutical patents, it is common practice to reserve costs for the final determination of the case, as seen in cases like Sigma Pharmaceuticals (Australia) Pty Ltd v Wyeth and Reckitt Benckiser Healthcare (UK) Ltd v GlaxoSmithKline Australia Pty Ltd.

Given the complexity of the issues and the volume of evidence presented during the interlocutory hearings, the court concluded that an order for each party to bear its own costs was the most equitable approach. This decision ensures that neither party is unduly prejudiced by the provisional nature of the interlocutory relief granted. The court's reasoning reflects a careful consideration of the principles of costs allocation and the practical realities of patent litigation.

The final orders of the court were that each party bear its own costs for the interlocutory application dated 18 August 2017, that the cross-claimants bear their own costs for the interim injunctive relief application dated 6 September 2017, and that the cross-respondent pay the cross-claimants' costs for the interlocutory application dated 17 October 2017. These orders were made in accordance with Rule 39.32 of the Federal Court Rules 2011.