FEDERAL COURT OF AUSTRALIA
Liberation Developments Pty Ltd v Lomax Group Pty Ltd [2019] FCA 2059
File number(s): QUD 117 of 2018 Judge(s): GREENWOOD J Date of judgment: 5 December 2019 Catchwords: PATENTS – consideration of the disposition of the costs of the principal proceeding Legislation: Federal Court of Australia Act 1976 (Cth), s 43 Cases cited: Bowen Investments Pty Ltd v Tabcorp Holdings Ltd (No 2) [2008] FCAFC 107
Dometic Australia Pty Ltd v Houghton Leisure Products Pty Ltd (No 2) [2019] FCA 57
Hells Angels Motorcycle Corporation (Australia) Pty Limited v Redbubble Limited [2019] FCA 1349
Hockey v Fairfax Publications Pty Ltd (No 2) [2015] FCA 750; (2015) 237 FCR 127
James v Surf Road Nominees Pty Ltd (No 2) [2005] NSWCA 296
Les Laboratoires Servier v Apotex Pty Ltd [2016] FCAFC 27; (2016) 247 FCR 61
Liberation Developments Pty Ltd v Lomax Group Pty Ltd [2019] FCA 1180; (2019) 144 IPR 413
Queensland North Australia Pty Ltd v Takeovers Panel (No 2) [2015] FCAFC 128; (2015) 236 FCR 370
Date of hearing: 20 August 2019 Date of last submissions: 20 August 2019 Registry: Queensland Division: General Division National Practice Area: Intellectual Property Sub-area: Patents and Associates Statutes Category: Catchwords Number of paragraphs: 40 Counsel for the Applicants: Mr D Larish Solicitor for the Applicants: Bennett & Philp Lawyers Counsel for the Respondents: Mr T Cordiner QC with Mr B Gardiner Solicitor for the Respondents: Interface Legal Pty Ltd ORDERS
QUD 117 of 2018 BETWEEN: LIBERATION DEVELOPMENTS PTY LTD ACN 127 681 118 (and another named in the Schedule)
First Applicant
AND: LOMAX GROUP PTY LTD ACN 615 835 848 (and others named in the Schedule)
First Respondent
JUDGE:
GREENWOOD J
DATE OF ORDER:
5 DECEMBER 2019
THE COURT ORDERS THAT:
1.Subject to Orders 2 to 6, the applicants pay the costs of the respondents of and incidental to the amended originating application related to proceedings for relief against all respondents for contended infringement of, or authorisation of infringement of, Australian Innovation Patent 20133100057 (the “Patent proceeding”) including reserved costs of and incidental to any question arising in connection with the Patent proceeding.
2.The respondents as cross-claimants pay the costs of the applicants as cross-respondents of and incidental to those aspects of the cross-claim related to relief on the ground of unjustified threats of patent infringement and relief on the ground of conduct said to be in contravention of the Australian Consumer Law including reserved costs of and incidental to any question arising in connection with either or both of those grounds of the cross-claim.
3.The respondents as cross-claimants pay the costs of the applicants of and incidental to the cross-claim for invalidity of the patent in suit on the ground of lack of novelty.
4.The respondents as cross-claimants pay the costs of the applicants of and incidental to the interlocutory application by the cross-claimants for leave to rely on a lack of fair basis as aground of invalidity of the patent in suit.
5.There be no…
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- AGLC
- Liberation Developments Pty Ltd v Lomax Group Pty Ltd [2019] FCA 2059
- Case
- [2019] FCA 2059
- Decision Date
CaseChat Overview and Summary
The court considered the outcomes of the various claims and cross-claims, assessing the conduct of the parties throughout the litigation process. The court found that Liberation Developments Pty Ltd was entitled to costs from Lomax Group Pty Ltd in relation to the principal proceeding and certain aspects of the cross-claims. Conversely, Lomax Group Pty Ltd was ordered to pay costs to Liberation Developments Pty Ltd for the interlocutory application and other specified proceedings. The court exercised its discretion under the Federal Court of Australia Act 1976 and the Federal Court Rules 2011 to make detailed orders concerning the costs and to publish these orders along with the reasons for judgment.
The court made specific orders regarding the costs of the principal proceeding and the cross-claims, ensuring a comprehensive allocation of costs between the parties. Liberation Developments Pty Ltd was ordered to pay the costs of the respondents in relation to the principal proceeding and certain aspects of the cross-claims, while Lomax Group Pty Ltd was required to pay costs to Liberation Developments Pty Ltd for the interlocutory application and other specified proceedings. The court's orders also included provisions for reserved costs and the publication of the reasons for judgment from Chambers.
Orders
Orders of the court
1. Subject to Orders 2 to 6, the applicants pay the costs of the respondents of and incidental to the amended originating application related to proceedings for relief against all respondents for contended infringement of, or authorisation of infringement of, Australian Innovation Patent 20133100057 (the “Patent proceeding”) including reserved costs of and incidental to any question arising in connection with the Patent proceeding.
2. The respondents as cross-claimants pay the costs of the applicants as cross-respondents of and incidental to those aspects of the cross-claim related to relief on the ground of unjustified threats of patent infringement and relief on the ground of conduct said to be in contravention of the Australian Consumer Law including reserved costs of and incidental to any question arising in connection with either or both of those grounds of the cross-claim.
3. The respondents as cross-claimants pay the costs of the applicants of and incidental to the cross-claim for invalidity of the patent in suit on the ground of lack of novelty.
4. The respondents as cross-claimants pay the costs of the applicants of and incidental to the interlocutory application by the cross-claimants for leave to rely on a lack of fair basis as aground of invalidity of the patent in suit.
5. There be no order as to the costs of and incidental to the cross-claim for revocation of the patent in suit on the ground of lack of fair basis other than Order 4
6. The applicants pay the costs of the respondents of and incidental to the first case management conference, the interlocutory application for an injunction pending suit on 28 March 2018 so far as that application related to the questions in issue in the Patent proceeding, and the costs of the return of subpoenas as those matters related predominantly to the questions in issue in the Patent proceeding.
7. 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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