Mizzi Family Holdings Pty Ltd v Morellini (No 4)

FEDERAL COURT OF AUSTRALIA
Mizzi Family Holdings Pty Ltd v Morellini (No 4) [2017] FCA 1021

File number: QUD 112 of 2011

Judge: DOWSETT J

Date of judgment: 30 August 2017

Catchwords: PATENTS ‑ costs ‑ where cross‑claimant failed to establish any loss attributable to allegedly unjustifiable threats ‑ where that problem should have been identified by the cross-claimant or his legal advisers

Date of hearing: 12 August 2016

Date of last submissions: 15 August 2017

Registry: Queensland

Division: General Division

National Practice Area: Intellectual Property

Sub-area: Patents and associated Statutes

Category: Catchwords

Number of paragraphs: 2

Counsel for the Applicant/First and Second Cross Respondents: Mr D Campbell QC

Solicitor for the Applicant/First and Second Cross Respondents: Boulton Cleary & Kern

Counsel for the Respondent/Cross‑Claimant: Mr A Ryan QC

Solicitor for the Respondent/Cross‑Claimant: Griffith Hack

ORDERS

QUD 112 of 2011

BETWEEN:
MIZZI FAMILY HOLDINGS PTY LTD ACN 132 033 615

Applicant

AND:
DARYL MARK MORELLINI

Respondent

AND BETWEEN:
DARYL MARK MORELLINI

Cross-Claimant

AND:
MIZZI FAMILY HOLDINGS PTY LTD ACN 132 033 615 (and another named in the Schedule)

First Cross-Respondent

JUDGE:

DOWSETT J

DATE OF ORDER:

30 AUGUST 2017

THE COURT ORDERS THAT:
1.the cross-claimant pay the first and second cross‑respondents’ costs of and incidental to the issue of unjustified threats.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
DOWSETT J:

I am presently considering applications for costs orders in connection with the hearing and determination of one issue in this case. The issue is the cross‑claim by the cross‑claimant against the first and second cross‑respondents for damages allegedly sustained as the result of unjustified threats.
I have dismissed that claim on the ground that the cross‑claimant failed to establish any loss attributable to the threats. In my view this problem should have been identified by his legal advisers, if not by him. In those circumstances, I order the cross-claimant to pay the first and second cross‑respondents’ costs of and incidental to that issue.

I certify that the preceding two (2) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.
Associate:
Dated: 30 August 2017

SCHEDULE OF PARTIES

QUD 112 of 2011

Cross-Respondents

Second Cross-Respondent

PAUL LAURENCE MIZZI

CaseChat Overview and Summary

Mizzi Family Holdings Pty Ltd and others brought an action against Morellini and others concerning patent infringement and associated reliefs. The Morellini parties subsequently filed a cross-claim against the Mizzi parties, alleging that the latter made threats which were unjustifiable and which caused them loss. The Mizzi parties sought an order that the Morellini parties pay their costs of the cross-claim, on the basis that the latter had not succeeded in establishing their cross-claim. The court had to determine whether the Morellini parties had established their cross-claim, and if not, whether they were liable for the Mizzi parties’ costs.

The court found that the Morellini parties had not established their cross-claim, as they had not proved any loss attributable to the allegedly unjustifiable threats. The court noted that the Morellini parties had not called any witnesses to testify to the effect of the threats, and that their case was based on written materials alone. The court also found that the Morellini parties should have identified the problem of proving loss earlier, either through their own investigation or that of their legal advisers. The court held that the Morellini parties were liable for the Mizzi parties’ costs of and incidental to the issue of unjustified threats, pursuant to the provisions of the Federal Court Rules 2011.

The court ordered that the Morellini parties pay the Mizzi parties’ costs of and incidental to the issue of unjustified threats. The court noted that the amount of costs was to be assessed if not agreed, in accordance with the relevant rules of court. The court did not make any further orders, as the matter was confined to the issue of costs. The court emphasised that the Morellini parties’ failure to establish their cross-claim was a significant factor in its decision to order them to pay costs.

Orders of the court

1. the cross-claimant pay the first and second cross‑respondents’ costs of and incidental to the issue of unjustified threats.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

File number:	QUD 112 of 2011
Judge:	DOWSETT J
Date of judgment:	30 August 2017
Catchwords:	PATENTS ‑ costs ‑ where cross‑claimant failed to establish any loss attributable to allegedly unjustifiable threats ‑ where that problem should have been identified by the cross-claimant or his legal advisers
Date of hearing:	12 August 2016
Date of last submissions:	15 August 2017
Registry:	Queensland
Division:	General Division
National Practice Area:	Intellectual Property
Sub-area:	Patents and associated Statutes
Category:	Catchwords
Number of paragraphs:	2
Counsel for the Applicant/First and Second Cross Respondents:	Mr D Campbell QC
Solicitor for the Applicant/First and Second Cross Respondents:	Boulton Cleary & Kern
Counsel for the Respondent/Cross‑Claimant:	Mr A Ryan QC
Solicitor for the Respondent/Cross‑Claimant:	Griffith Hack

QUD 112 of 2011
BETWEEN:	MIZZI FAMILY HOLDINGS PTY LTD ACN 132 033 615 Applicant
AND:	DARYL MARK MORELLINI Respondent
AND BETWEEN:	DARYL MARK MORELLINI Cross-Claimant
AND:	MIZZI FAMILY HOLDINGS PTY LTD ACN 132 033 615 (and another named in the Schedule) First Cross-Respondent

QUD 112 of 2011
Cross-Respondents
Second Cross-Respondent	PAUL LAURENCE MIZZI