Mimotopes Pty Ltd v Monash University
[2017] FCA 278
•20 March 2017
FEDERAL COURT OF AUSTRALIA
Mimotopes Pty Ltd v Monash University [2017] FCA 278
File number: VID 1254 of 2016 Judge: MOSHINSKY J Date of judgment: 20 March 2017 Legislation: Competition and Consumer Act 2010 (Cth), Sch 2, Australian Consumer Law, ss 18, 21
Federal Court Rules 2011, r 26.12
Cases cited: Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225
Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397
Date of hearing: 20 March 2017 Registry: Victoria Division: General Division National Practice Area: Commercial and Corporations Sub-area: Regulator and Consumer Protection Category: No Catchwords Number of paragraphs: 11 Counsel for the Applicant: Mr MD Wyles QC with Mr EW Moon Solicitor for the Applicant: Blaak & Associates Counsel for the Respondent: Mr R Heath Solicitor for the Respondent: Clayton Utz ORDERS
VID 1254 of 2016 BETWEEN: MIMOTOPES PTY LTD (ACN 090 841 286)
Applicant
AND: MONASH UNIVERSITY
Respondent
JUDGE:
MOSHINSKY J
DATE OF ORDER:
20 MARCH 2017
UPON THE APPLICANT by its counsel undertaking that it will not bring any action in this Court or in any other forum against the respondent (Monash University) based on the facts and matters the subject of this proceeding, including any lease into which the parties have entered in respect of the property in question,
THE COURT ORDERS THAT:
1.The applicant have leave to discontinue the whole of its application.
2.The applicant forthwith file a notice of discontinuance in respect of the whole of its application under r 26.12 of the Federal Court Rules 2011.
3.The applicant pay the respondent’s costs of the application (including any reserved costs, the costs of the application to discontinue and the costs of the hearing today) on a party and party basis, to be taxed if not agreed.
4.The trial date of the cross-claim (which was set down for hearing today) be vacated.
5.The cross-claim be listed for a case management hearing on a date to be fixed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
MOSHINSKY J:
The applicant (Mimotopes) commenced this proceeding against the respondent (Monash University) by originating application and concise statement in October 2016. By the application, Mimotopes alleged that Monash University engaged in misleading or deceptive conduct in contravention of s 18 of the Australian Consumer Law (being Sch 2 to the Competition and Consumer Act 2010 (Cth)) and unconscionable conduct in contravention of s 21 of the Australian Consumer Law.
The matter came before the Court for case management on 18 November 2016, at which time orders were made relating to discovery, mediation and evidence. The matter was set down for trial on 20 March 2017 (which is today) on an estimate of three days.
On 1 March 2017, orders were made by consent giving Monash University leave to file and serve a notice of cross-claim, and adjusting the timetable for the provision of evidence and other steps relating to the trial. The varied timetable for evidence provided for the applicant to file its lay and expert affidavit material by 6 and 8 March 2017 respectively; for the respondent to file and serve its evidence by 10 March 2017; and for the applicant to file and serve any affidavit material in reply by 14 March 2017.
On 17 March 2017, Mimotopes’ solicitors emailed the Court that, following receipt of Monash University’s affidavits on 14 March 2017 and the advice in conference of Queen’s Counsel, the solicitors had received instructions overnight to seek leave to discontinue the claim. The email stated that the solicitors were in the course of seeking Monash University’s consent to the filing of a notice of discontinuance.
This morning, before the hearing in Court, Monash University filed an outline of submissions and an affidavit of Mr Kym Fraser (of Monash University’s instructing solicitors) sworn 20 March 2017.
At the hearing this morning, Mimotopes applied for leave to discontinue the whole of its application, on the basis of an undertaking that it would not bring any action in this Court or in any other forum against Monash University based on the facts and matters the subject of this proceeding, including any lease into which the parties have entered in respect of the property in question.
Mimotopes accepted that the ‘default’ position under the Federal Court Rules 2011 (see r 26.12(7)) is that Mimotopes would be liable to pay Monash University’s costs of the application (that is, the proceeding other than the cross-claim). Mimotopes did not seek a departure from that position, and accepted that these costs included any reserved costs, the costs of the application to discontinue and the costs of the hearing today.
Monash University was content with the form of undertaking proffered by Mimotopes (which reflected the conditions Monash University had sought in its submissions). However, Monash University sought an order that Mimotopes pay its costs of the proceeding (other than the cross-claim) on an indemnity basis, alternatively on a solicitor-client basis. Monash University contended that Mimotopes’ claims were groundless from their inception, or had been continued in circumstances where the applicant ought to have known that it had no chance of success, and indemnity costs were appropriate on this basis: see, for example, Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225 at 230-231, citing Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397.
In support of its position, Monash University referred to the insufficiency of the facts set out in the concise statement to ground either a misleading or deceptive conduct claim or an unconscionable conduct claim. Monash University also submitted that, even if regard were had to the two additional factual matters set out in Mimotopes’ “synopsis” filed for the assistance of the Court in connection with the first case management hearing, the claims were groundless. Monash University referred to the affidavit of Ms Sonja Plompen sworn 7 March 2017, especially at [34] to [36], and a letter dated 6 December 2016 from Mimotopes to the Chancellor and Vice-Chancellor of Monash University, in support of the contention that Mimotopes’ claims that Monash University engaged in misleading or deceptive conduct or unconscionable conduct were hopeless.
While the submissions on behalf of Monash University demonstrate that it had a very strong defence which was likely to succeed, I am not satisfied on the basis of the material presently before the Court that Mimotopes’ claims were groundless such as to make it appropriate to order that costs be paid on an indemnity basis. Further, it appears that Mimotopes has moved quickly, from the time that it obtained the advice of senior counsel, to seek to discontinue its claims, which saves further time and expense being incurred by Monash University and relieves the Court of the need to hear and determine the application. For these reasons, while Mimotopes should pay Monash University’s costs of the application, these costs should be on a party and party basis and not on an indemnity or solicitor-client basis.
It was common ground that the trial date for the cross-claim (which was also set down for hearing today) should be vacated. I will make an order to this effect.
I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moshinsky. Associate:
Dated: 20 March 2017
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