FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)Irwin v Lee [2022] FedCFamC2G 3
File number(s): MLG 2612 of 2019 Judgment of: JUDGE BAIRD Date of judgment: 20 January 2022 Catchwords: INTELLECTUAL PROPERTY – Costs – where application dismissed by consent – where no hearing on merits - whether costs should be awarded – whether on indemnity costs basis – in a lump sum – according to Federal Court scale – or according to Schedule 1, Part 1 of Federal Circuit Court Rules 2001(Cth) or Schedule 2, Part 1 of Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) – reasonableness of amount of costs claimed - whether justifying circumstances for indemnity, lump sum costs order – where circumstances did not justify indemnity costs in respect of all costs claimed incurred – exercise of discretion to award costs – costs ordered fixed in a lump sum Legislation: Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 1.04, 13.02, 22.02, 22.09, Sch 2 Pt 1
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 214
Federal Circuit Court of Australia Act 1999 (Cth) s 79
Federal Circuit Court Rules 2001(Cth) rr 1.03, 13.02, 15.03, 17.05, 21.02, 21.10, Sch 1 Pt 1
Federal Court of Australia Act 1976 (Cth) s 37N
Federal Court Rules 2011 (Cth) Pt 40
Cases cited: FCA US LLC v Mahindra Automotive Australia Pty Ltd [2021] FCA 1091
Hamod v New South Wales (2002) 188 ALR 659; [2002] FCA 424
Hudson v Sigalla (No 2) [2017] FCA 339
JT Stafford & Son Ltd v Lindley (No 2) [1969] 3 All ER 1122
LFDB v SM (No 2) [2017] FCAFC 207 at [14]
Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11
Paciocco v Australia and New Zealand Banking Group (No 2) (2017) 253 FCR 403; [2017] FCAFC 146
Rickus v Motor Trades Association of Australia Superannuation Fund Pty Limited (2010) 265 ALR 112; [2010] FCAFC 16
Seafolly Pty Ltd v Maddern (No 6) [2015] FCA 1369
Washington v Qantas Airways Limited (2014) 107 IPR 144; [2014] FCCA 1413
Division: Division 2 General Federal Law Number of paragraphs: 147 Date of last submission/s: 8 April 2020 Date of hearing: Determined on the papers Place: Sydney Solicitor for the Applicant: Mr J Irwin Counsel for the Respondents: Mr H T Bevan Solicitor for the Respondents: Simpsons Solicitors
Table of Corrections 3 February 2022 The heading Federal Court Costs Scale has been moved from before paragraph 82, to before paragraph 84 ORDERS
MLG 2612 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: INGRID TAMARA IRWIN
Applicant
AND: BRI LEE
First Respondent
ALLEN & UNWIN PTY LTD
Second Respondent
JANE PALFREYMAN
Third Respondent
ORDER MADE BY:
JUDGE BAIRD
DATE OF ORDER:
20 JANUARY 2022
THE COURT ORDERS THAT:
1.Paragraphs 4 and 5 of the Orders of the Court made 2 December 2019 are…
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Details
- AGLC
- Irwin v Lee [2022] FedCFamC2G 3
- Case
- [2022] FedCFamC2G 3
- Decision Date
CaseChat Overview and Summary
In the Federal Circuit Court, Irwin v Lee involved a dispute related to intellectual property. The Applicant sought to discontinue the proceeding against the Respondents, leading to a discussion about the costs incurred. The primary legal issue was the determination of the appropriate costs to be awarded, whether on an indemnity basis, in a lump sum, or according to specific rules and schedules. The court also had to assess the reasonableness of the costs claimed and the existence of circumstances justifying an indemnity or lump sum order.
The court considered the evidence and submissions from both parties, including the affidavits and the costs summary prepared with the assistance of a costs expert. The Respondents' solicitor provided detailed information on the legal costs and disbursements incurred, which amounted to approximately $195,000. The Applicant did not contest the reasonableness of the costs claimed but argued against the lump sum order and indemnity costs basis. The court exercised its discretion in awarding costs, taking into account the delay in delivering the reasons and the current circumstances of the Covid-19 pandemic. The court concluded that the costs should be fixed in a lump sum, applying a discount and allowing time for payment.
The court ordered the Applicant to pay the Respondents a total of $85,000 in costs, to be paid within 90 days. Additionally, the suppression order made on 4 September 2019 was made permanent. This decision provides clarity on the court's approach to costs in cases involving intellectual property disputes and the factors considered in determining the appropriate award.
The court considered the evidence and submissions from both parties, including the affidavits and the costs summary prepared with the assistance of a costs expert. The Respondents' solicitor provided detailed information on the legal costs and disbursements incurred, which amounted to approximately $195,000. The Applicant did not contest the reasonableness of the costs claimed but argued against the lump sum order and indemnity costs basis. The court exercised its discretion in awarding costs, taking into account the delay in delivering the reasons and the current circumstances of the Covid-19 pandemic. The court concluded that the costs should be fixed in a lump sum, applying a discount and allowing time for payment.
The court ordered the Applicant to pay the Respondents a total of $85,000 in costs, to be paid within 90 days. Additionally, the suppression order made on 4 September 2019 was made permanent. This decision provides clarity on the court's approach to costs in cases involving intellectual property disputes and the factors considered in determining the appropriate award.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
On 27 November 2019, the Applicant, by email sought to discontinue the proceeding against the Respondents (see above, [4]-[5]). On 2 December 2019, the parties appeared before me and I made the orders I have described above, at [6] – [7].EVIDENCE ON THE ISSUE OF COSTSThe Respondents Mr Simpson is the Respondents’ solicitor on the record. He is an experienced intellectual property practitioner, with over 20 years’ experience in Australia, and before that in the United Kingdom. Simpson #1 was made on 18 November 2019 in answer on the application in a case, and other matters relating to the November hearing. Mr Simpson first refers to the pre‑litigation inspection by Ms Johnson in July 2018. Mr Simpson then understood Ms Johnson to act for the Applicant (see above at [22]). He says that by reason of material subsequently put forward by the Applicant his understanding may be incorrect, and Ms Johnson may not have been so engaged. Mr Simpson annexes correspondence to show what documents were made available at that inspection (see further below at [119] – [120]). Mr Simpson addresses the Applicant’s foreshadowed intention to join named individuals in the proceeding, argues they should not be joined, and evidences his firm’s inquiries of the Respondents and the named individuals in that regard. Mr Simpson then recounts that the Applicant posted a video on her personal Facebook page in July 2019 in which he says the Applicant made statements broadly reflecting her claims subsequently made in the proceeding, refers to third party comments on Facebook following that post and on social media of which the first respondent then became aware of, and expresses the prejudice and distress caused to the first respondent. To the best of his knowledge the Facebook page is no longer publicly available. Mr Simpson attests that the Respondents are concerned that the proceeding be heard and determined as soon as possible, his concern about the legal costs, and opposes anything that would delay the hearing. Simpson #2 is made in support of the lump-sum costs order sought by the Respondents. It is intended to operate as a costs summary compliant where applicable with the Federal Court Costs Practice Note GPN‑COSTS. Mr Simpson makes the appropriate attestations. He attests that the costs summary has been prepared with the assistance of a costs’ expert. Mr Simpson attests the Respondents’ incurred legal costs and disbursements as at 2 December 2019 amounting to $183,501.20 (excluding GST), and that further legal costs incurred since then (to 5 February 2020) amount to “at least” $11,515.00 (excluding GST), being a total of $195,016.20. He states that professional fees amount to $146,301.50, and identifies 5 lawyers who have performed work in the matter, primarily himself (115 hours) and one lawyer/associate (184 hours). The other 3 lawyers have in total performed 15 hours of work. Mr Simpson attests that the Respondents have incurred disbursements of $48,714.70, comprising Counsel’s fees of $44,583.32, and Court transcript, travel and courier disbursements of $4,131.38.
Decision
Reasons for decision
Having regard to the finality of a lump sum order, I round down the preliminary amount to $100,000 and apply a lump sum discount of 15% to that amount. I will allow time to pay.CONCLUSION The amount I will order the Applicant to pay the Respondents by way of costs is the total fixed amount of $85,000. Given the delay in delivering these reasons, and the current circumstances of the Covid-19 pandemic I will allow a period of 90 days for the Applicant to pay this amount. I will so order.Another matter The suppression order made 4 September 2019 will be made permanent.
Ratio Decidendi
Legal Principle Established
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