FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Otter Products v Haydon [2021] FedCFamC2G 13
File number(s): MLG 1326 of 2021 Judgment of: JUDGE BAIRD Date of judgment: 15 September 2021 Catchwords: PRACTICE AND PROCEDURE – COSTS – Assessment of costs ordered under Schedule 1, Part 1 of Federal Circuit Court Rules 2001 (Cth) Legislation: Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 217
Federal Circuit Court of Australia Act 1999 (Cth) s 17A
Federal Circuit Court Rules 2001(Cth) rr 13.03C, 13.07, Schedule 1 of Part 1
Division: Division 2 General Federal Law Number of paragraphs: 25 Date of last submission/s: 24 August 2021 Date of hearing: Determined on the papers Place: Sydney Solicitor for the Applicant: Stephen Marcus Stern, Corrs Chambers Westgarth Respondent: Peter Haydon ORDERS
MLG 1326 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: OTTER PRODUCTS, LLC
Applicant
AND: PETER HAYDON
Respondent
ORDER MADE BY:
JUDGE BAIRD
DATE OF ORDER:
15 SEPTEMBER 2021
THE COURT ORDERS THAT:
1.The applicant’s costs ordered by paragraph 8 of Orders of the Court made 17 August 2021 be fixed in the sum of $13,144.41.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
Judge Baird
Introduction
On 17 August 2021 I heard and determined the applicant’s, Otter Products, LLC’s, claim for summary judgment in this proceeding against the respondent, Mr Peter Haydon. Pursuant to s 17A of the Federal Circuit Court of Australia Act 1999 (Cth) and rule 13.07 of the Federal Circuit Court Rules 2001(Cth) I gave judgment ex tempore in favour of Otter Products: see Otter Products, LLC v Peter Haydon [2021] FCCA 2012.
I made the following order in relation to costs:
8.ORDERS the Respondent pay to Otter Products its costs of this proceeding up to and including the hearing on 17 August 2021, in accordance with the scale amount in Part 1 Schedule of the Federal Circuit Court Rules 2001 (Cth), and:
(a)DIRECT Otter Products provide to the Chambers of Judge Baird and serve on the Respondent a schedule of its calculations of its costs by 5pm 24 August 2021;
(b)DIRECT the respondent provide to the Chambers of Judge Baird and serve on the respondent any submissions on the calculation of costs by 31 August 2021; and
NOTES, by consent, the Court will determine the amount of such costs on the papers pursuant to r 15.03 of the Rules.
(Costs Order).
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- Case
- [2021] FedCFamC2G 13
- Decision Date
CaseChat Overview and Summary
The legal issues that the court had to decide included the applicability of the Federal Circuit Court Costs Order (Costs Order) to the proceedings, and whether the costs claimed by the plaintiff were reasonable and properly incurred. The court also had to consider whether certain events in the proceedings were to be characterised as interim or summary hearings under the Costs Order, and whether an advocacy loading should be allowed for each hearing.
In its judgment, the court found that the preparation of originating process, the first court date, and the case management/directions hearing were not interim or summary hearings under the Costs Order. The court also found that certain items claimed by the plaintiff were not assessable under the Costs Order, and that an advocacy loading should be allowed for each hearing. The court held that the disbursements claimed by the plaintiff were reasonable and properly incurred. The court assessed the costs in accordance with the Costs Order and allowed the costs claimed by the plaintiff, subject to certain adjustments.
The final orders of the court were that the plaintiff was entitled to costs in the proceedings, subject to certain adjustments. The court allowed an advocacy loading for each of the three hearings conducted in the proceeding, and allowed the disbursements claimed by the plaintiff. The court also disallowed certain costs claimed by the plaintiff, which were not assessable under the Costs Order. The court ordered the defendant to pay the costs of the proceeding as assessed by the court.
Orders
Orders of the court
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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
Self‑evidently, item 3 does not apply to a final hearing. An application for summary judgment, as is an application for default judgment, is a summary procedure. It follows the hearing of such an application is an item 3 event.Consideration I have reviewed Otter Products schedule and had regard to Otter Products’ solicitors covering submission. For the reasons I have set out above, they are misconceived. As I have explained above, it is incorrect to characterise the preparation of originating process (originating application, statement of claim and genuine steps statement) as an event separate from the first court date, to characterise the first court date as an interim or summary hearing under item 3, to characterise the 5 August 2021 case management/directions hearing as an interim or summary hearing rather than the short mention it was, or to characterise the summary hearing on 17 August 2021, as a final hearing. Further, and contrary to Otter Products schedule, and the submissions set out at [5] above the following do not come within the Costs Order: (i)an interim hearing on 6 July 2021. There was no such hearing nor interim application filed. Item 1 encompasses events up to completion of the first court date (in the present case, 14 July 2021);(ii)item 6 preparation for final hearing; and (iii)item 9 final hearing costs for attendance of solicitor at hearing to take judgment, and explain orders. For the above reasons, and in the circumstances I have set out at [9]-[11] above, the events assessable under the Costs Order are those corresponding to items 1, 3, 13, and disbursements as I allow under item 14. In addition, it is a matter for my assessment whether an advocacy loading pursuant to item 12 should be allowed in respect of each hearing.Advocacy loading (item 12) This proceeding was a straightforward claim for infringement of registered trade marks by dealing in the course of trade with what I found to be counterfeit goods, specifically mobile phone cases to which were applied various Otter Products’ Australian registered trade marks without its licence or authority. Notwithstanding this, in part because of Mr Haydon’s intermittent participation at directions/case management hearings, and in part because of the matters required to be established in this proceeding in order to satisfy me it was proper to give summary judgment, I consider it reasonable to allow an advocacy loading to each of the three hearings conducted in the proceeding.Disbursements (item 14) The Otter Products schedule sets out a number of item 14 disbursements comprising Court fee, and Agent’s fees including for attendances at Mr Haydon’s stores, product investigations, trap purchases, receipt and inspection of products delivered up, attempted service, and service, and similar (see also the submissions at [5], item 6). These disbursements claimed are evidenced by accompanying detailed invoices. I have reviewed the invoices, and am satisfied that the amounts have been reasonably incurred.Assessment of costs under the Costs Order