Liberation Developments Pty Ltd v Lomax Group Pty Ltd

Case [2019] FCA 2059


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

Liberation Developments Pty Ltd sought relief against Lomax Group Pty Ltd and others for alleged infringement of Australian Innovation Patent 20133100057. The case was before the Federal Court of Australia, where the parties also engaged in cross-claims related to the patent's validity and unjustified threats of patent infringement. The court was required to decide the allocation of costs between the parties in relation to the principal proceeding and the cross-claims, including an interlocutory application by the respondents for leave to rely on a lack of fair basis as a ground of invalidity of the patent.

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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