Selective Trade Pty Ltd v Ferngrove Pharmaceuticals Australia Pty Ltd (No. 2)

Selective Trade Pty Ltd brought an action against Ferngrove Pharmaceuticals Australia Pty Ltd. The dispute concerned allegations of trademark infringement and unfair trading practices. The matter was heard in the Federal Court of Australia. The defendants sought to have a non-party, Mr Wang, a director of Selective Trade, ordered to pay costs. The plaintiffs argued that it was unjust to order a non-party to pay costs, while the defendants contended that such an order would be appropriate given Mr Wang's significant involvement in the litigation.

The court considered the principles governing the imposition of costs against non-parties. It noted that the decision to award costs against a non-party should be guided by whether it is in the interests of justice to do so. The court weighed factors such as the nature and extent of the non-party's involvement in the proceedings, the fairness of imposing costs on them, and the overall interests of justice. Given that Mr Wang was a director of the plaintiff and had been actively involved in the litigation, the court determined that it was not in the interests of justice to order him to pay costs. However, the court found that the defendants' conduct warranted an order for them to pay a significant portion of the plaintiffs' costs for the notice of motion.

The court dismissed the application for a non-party costs order against Mr Wang, finding that it was not just to impose such costs on him. However, due to the defendants' conduct, the court ordered them to pay 80% of the plaintiffs' costs of the notice of motion filed on 12 May 2022. This decision reflects the court's approach to balancing the interests of justice with the principles of fairness in cost orders.