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O'Callaghan v Genovese

O'Callaghan v Genovese

Case [2005] WASC 161 22 July 2005

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O'CALLAGHAN & ANOR -v- GENOVESE & ANOR [2005] WASC 161

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2005] WASC 161
Case No:	CIV:2115/2003	Heard:	29 APRIL 2005
Coram:	MASTER NEWNES	Delivered:	22/07/05
No of pages:	19	Judgment Part:	1 of 1
Result:	Portion of costs payable by plaintiffs, otherwise no order as to costs
Category:	B
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Parties:	EUGENE PATRICK O'CALLAGHAN JOAN GERALDINE O'CALLAGHAN GAETANO GENOVESE MARIA GENOVESE
Catchwords:	Practice and procedure Application by plaintiffs to discontinue Whether defendants entitled to costs of the action Relevant principles Turns on own facts
Legislation:	Patents Act 1952 (Cth), s 105 Patents Act 1990 (Cth), s 138 Rules of the Supreme Court, O 1 r 4A, O1 r 4B Statute of Monopolies, s 6
Case References:	Edwards Madigan Toorzillo Griggs Pty Ltd v Gloria Stack & Ors [2003] NSWCA 302 Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Ltd & Ors (1998) 81 ALR 397 Gribbles Pathology Pty Ltd v Health Insurance Commission (1997) 80 FCR 284 Nowlan v Marson Transport Pty Ltd (2001) 53 NSWLR 116 Re The Minister for Immigration & Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622 Rizal v Minister for Immigration and Multicultural Affairs [1999] FCA 334 White v Overland [2001] FCA 1333 Woodbridge Foam Corporation v Afco Automotive Foam Components Pty Ltd [2002] FCA 883 American International Group Inc v London American International Corp Ltd [1982] FSR 441 Australian Securities Commission v AustHome Investments Ltd (1993) 44 FCR 94 Blay v Pollard & Morris [1930] 1 KB 628 Bond Media Limited v John Fairfax Group Pty Ltd (1988) 16 NSWLR 82 Catnic Components Ltd v Hill & Smith Ltd [1982] RPC 183 Chen v Karandonis [2002] NSWCA 412 Colgate Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 Covell Matthews & Partners v French Wools Ltd [1977] 1 WLR 876 Craig v The Queen (1933) 49 CLR 429 Dare v Pulham (1982) 148 CLR 658 Decor Corporation Pty Ltd v Dart Industries inc (1998) 13 IPR 385 Furr v CD Truline (Building Products) Ltd [1985] FSR 553 Garwolin Nominees Pty Ltd v Statewide Building Society [1984] VR 469 Harriman v The Queen (1989) 167 CLR 590 MacRae Knitting Mills Ltd v Lowes Ltd (1936) 55 CLR 725 O'Neill v Mann [2000] FCA 1680 Populin v HB Nominees Pty Ltd (1982) 41 ALR 471 Pulham v Dare [1982] VR 648 Re Malley SM; Ex parte Gardner [2001] WASCA 83 Ready v Brown (1968) 118 CLR 165 Root Quality Pty Ltd v Root Control Technologies Pty Ltd (2000) 49 IPR 225 Smith v Carbone Bros Pty Ltd, unreported; FCt SCt of WA; Library No 960369; 17 July 1996 Water Board v Moustakas (1988) 180 CLR 491

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : O'CALLAGHAN & ANOR -v- GENOVESE & ANOR [2005] WASC 161 CORAM : MASTER NEWNES HEARD : 29 APRIL 2005 DELIVERED : 22 JULY 2005 FILE NO/S : CIV 2115 of 2003 BETWEEN : EUGENE PATRICK…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: O'Callaghan v Genovese [2005] WASC 161
Case: [2005] WASC 161
Decision Date

CaseChat Overview and Summary

The case of O'Callaghan and Anor v Genovese and Anor was heard in the Supreme Court of Western Australia. The plaintiffs sought leave to discontinue the proceedings. The only issue was by whom the costs of the action should be borne. The plaintiffs proposed that they pay the defendants' costs from 21 May 2004, and the defendants sought an order that the plaintiffs pay the defendants' costs of the action in their entirety on the basis that the defendants acted unreasonably and improperly in commencing and continuing this action in circumstances where the action could never have succeeded. The court held that, with one proviso, the appropriate order was that the plaintiffs pay the defendants' costs of the action from 21 May 2004 to the date of this application, but, save for costs orders already made, there otherwise be no order as to the costs of the action. The proviso was that it seems that no previous order had been made in respect of any costs thrown away by the defendants by reason of the plaintiffs' abandonment of the claims for breach of the Fair Trading Act and for passing off. On the face of it, the plaintiffs should pay any such costs, but the court would hear the parties on that.

Orders