Seafolly Pty Ltd v Madden (No 2) - [2013] FCA 46

FEDERAL COURT OF AUSTRALIA
Seafolly Pty Ltd v Madden (No 2) [2013] FCA 46

Citation: Seafolly Pty Ltd v Madden (No 2) [2013] FCA 46

Parties: SEAFOLLY PTY LTD (ACN 001 537 748) v LEAH MADDEN

File number: VID 764 of 2010

Judge TRACEY J

Date of judgment: 8 February 2013

Catchwords: COSTS – Application to vary order for costs – whether departure from ordinary position as to costs warranted where Calderbank offer made – whether departure from ordinary position as to costs warranted where applicant unsuccessfully pursued certain issues but was successful on other grounds – departure from normal order not justified – application dismissed

Legislation: Copyright Act 1968 (Cth)
Fair Trading Act 1989 (Qld)
Federal Court of Australia Act 1976 (Cth) – s 43
Federal Court Rules 2011 (Cth) – Part 25
Trade Practices Act 1974 (Cth) – ss 52, 53(a)

Cases cited: Alpine Hardwoods (Aust) Pty Ltd v Hardys Pty Ltd (No 2) (2002) 190 ALR 121 – cited
Aristocrat Technologies Australia Pty Ltd v Global Gaming Supplies Pty Ltd (No 2) [2010] FCA 277 – considered
Black v Lipovac (1998) 217 ALR 386 – cited
Calderbank v Calderbank [1976] Fam Law 93 – considered, followed
Commissioner of Australian Federal Police v Razzi (No 2) (1991) 30 FCR 64 – considered
Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd (1993) 26 IPR 261 – considered
Dr Martens v Figgins Holdings Pty Ltd (No 2) [2000] FCA 602 – cited
Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397 – cited
Perry v Comcare (2006) 150 FCR 319 – cited
Roadshow Films v iiNet Limited(No 4) (2010) 269 ALR 606 – considered, applied
Ruddock v Vadarlis(No 2) (2001) 115 FCR 229 – considered, applied
Seafolly Pty Ltd v Madden [2012] FCA 1346 – considered
Trade Practices Commission v Nicholas Enterprises Pty Ltd (No 3) (1979) 28 ALR 201 – considered

Date of hearing: 18 December 2012

Date of last submissions: 10 January 2013

Place: Melbourne

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 52

Counsel for the Applicant: Mr C Golvan SC and Mr B Gardiner

Solicitor for the Applicant: Middletons

Counsel for the Respondent: Mr G Schoff SC and Mr I Horak

Solicitor for the Respondent: Phillips Ormonde Fizpatrick Lawyers

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 764 of 2010

BETWEEN:
SEAFOLLY PTY LTD (ACN 001 537 748)
Applicant

AND:
LEAH MADDEN
Respondent

JUDGE:

TRACEY J

DATE OF ORDER:

8 FEBRUARY 2013

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:
1. The Respondent’s application be dismissed.
2.The Respondent pay the Applicant’s costs of the application.

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

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 764 of 2010

BETWEEN:
SEAFOLLY PTY LTD (ACN 001 537 748)
Applicant

AND:
LEAH MADDEN
Respondent

JUDGE:

TRACEY J

DATE:

8 FEBRUARY 2013

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

I gave…

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

Case: [2013] FCA 46
Decision Date: 8 February 2013

CaseChat Overview and Summary

Seafolly Pty Ltd sought to vary an order for costs against them in a proceeding where Madden was the respondent. The application was brought before the Federal Court of Australia, which had previously determined that Seafolly was to pay Madden's costs of the proceeding. The current application focused on whether a departure from the usual order for costs was warranted given Madden's unsuccessful pursuit of certain issues and Seafolly's success on other grounds.

The legal issues before the court were whether the circumstances justified a departure from the ordinary rule that the losing party pays the costs of the winning party. Specifically, the court had to consider the relevance of a Calderbank offer made by Madden, which was an offer to settle made after proceedings had commenced but before judgment was given. The court also needed to assess whether Madden's unsuccessful pursuit of some issues, coupled with Seafolly's success on other points, warranted a variation in the usual costs order.

The court found that the circumstances did not justify a departure from the normal order for costs. Despite Madden's unsuccessful pursuit of certain issues, the court noted that Seafolly had not achieved a complete victory on all fronts. The court further highlighted the importance of adhering to the ordinary principle that the losing party pays the costs of the winning party, absent exceptional circumstances. The Calderbank offer, while relevant, did not alter the outcome in this instance. Consequently, the application to vary the costs order was dismissed, and Madden was ordered to pay Seafolly's costs of the application.

In conclusion, the court dismissed Madden's application to vary the costs order. Madden was ordered to pay Seafolly's costs of the application, underscoring the principle that costs follow the event unless exceptional circumstances exist. The court's decision emphasised the need for a balanced approach when considering applications to vary costs orders, ensuring that the principles of fairness and the rule of law are upheld.

Orders

Orders of the court

1. The Respondent’s application be dismissed.

2. The Respondent pay the Applicant’s costs of the application.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citation:		Seafolly Pty Ltd v Madden (No 2) [2013] FCA 46
Parties:		SEAFOLLY PTY LTD (ACN 001 537 748) v LEAH MADDEN
File number:		VID 764 of 2010
Judge		TRACEY J
Date of judgment:		8 February 2013
Catchwords:		COSTS – Application to vary order for costs – whether departure from ordinary position as to costs warranted where Calderbank offer made – whether departure from ordinary position as to costs warranted where applicant unsuccessfully pursued certain issues but was successful on other grounds – departure from normal order not justified – application dismissed
Legislation:		Copyright Act 1968 (Cth) Fair Trading Act 1989 (Qld) Federal Court of Australia Act 1976 (Cth) – s 43 Federal Court Rules 2011 (Cth) – Part 25 Trade Practices Act 1974 (Cth) – ss 52, 53(a)
Cases cited:		Alpine Hardwoods (Aust) Pty Ltd v Hardys Pty Ltd (No 2) (2002) 190 ALR 121 – cited Aristocrat Technologies Australia Pty Ltd v Global Gaming Supplies Pty Ltd (No 2) [2010] FCA 277 – considered Black v Lipovac (1998) 217 ALR 386 – cited Calderbank v Calderbank [1976] Fam Law 93 – considered, followed Commissioner of Australian Federal Police v Razzi (No 2) (1991) 30 FCR 64 – considered Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd (1993) 26 IPR 261 – considered Dr Martens v Figgins Holdings Pty Ltd (No 2) [2000] FCA 602 – cited Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397 – cited Perry v Comcare (2006) 150 FCR 319 – cited Roadshow Films v iiNet Limited(No 4) (2010) 269 ALR 606 – considered, applied Ruddock v Vadarlis(No 2) (2001) 115 FCR 229 – considered, applied Seafolly Pty Ltd v Madden [2012] FCA 1346 – considered Trade Practices Commission v Nicholas Enterprises Pty Ltd (No 3) (1979) 28 ALR 201 – considered
Date of hearing:	18 December 2012
Date of last submissions:	10 January 2013
Place:	Melbourne
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	52
Counsel for the Applicant:	Mr C Golvan SC and Mr B Gardiner
Solicitor for the Applicant:	Middletons
Counsel for the Respondent:	Mr G Schoff SC and Mr I Horak
Solicitor for the Respondent:	Phillips Ormonde Fizpatrick Lawyers

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 764 of 2010

BETWEEN:	SEAFOLLY PTY LTD (ACN 001 537 748) Applicant
AND:	LEAH MADDEN Respondent

JUDGE:	TRACEY J
DATE OF ORDER:	8 FEBRUARY 2013
WHERE MADE:	MELBOURNE

JUDGE:	TRACEY J
DATE:	8 FEBRUARY 2013
PLACE:	MELBOURNE