Taylor v Killer Queen, LLC (No 3)

[2021] FCA 912

FEDERAL COURT OF AUSTRALIA

Taylor v Killer Queen, LLC (No 3) [2021] FCA 912

File number(s):	NSD 1774 of 2019
Judgment of:	CHEESEMAN J
Date of judgment:	5 August 2021
Catchwords:	COSTS – costs of interlocutory application – Applicant seeks a reduction of costs by 25% - whether costs should follow the event – Held: no departure from usual order – Applicant ordered to pay Respondents’ costs
Division:	General Division
Registry:	New South Wales
National Practice Area:	Intellectual Property
Sub-area:	Trade Marks
Number of paragraphs:	8
Solicitor for the Applicant:	Silberstein & Associates (written submissions only)
Counsel for the Respondents:	E Bathurst (written submissions only)
Solicitor for the Respondents:	Corrs Chambers Westgarth

ORDERS

NSD 1774 of 2019

BETWEEN:

KATIE JANE TAYLOR

Applicant

AND:

KILLER QUEEN, LLC

First Respondent

KATHERYN ELIZABETH HUDSON

Second Respondent

KITTY PURRY, INC (and another named in the Schedule)

Third Respondent

AND BETWEEN:

KILLER QUEEN, LLC (and another named in the Schedule)

First Cross-Claimant

AND:

KATIE JANE TAYLOR

Cross-Respondent

ORDER MADE BY:	CHEESEMAN J
DATE OF ORDER:	5 AUGUST 2021

THE COURT ORDERS THAT:

1.The Applicant pay the Respondents’ costs of the Interlocutory Application filed 15 April 2021.

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

REASONS FOR JUDGMENT

CHEESEMAN J:

1. These reasons address the question of costs following on the success of the Respondents in resisting the Applicant’s interlocutory challenge to their claims of privilege in Taylor v Killer Queen, LLC (No 2) [2021] FCA 680.

2. The Applicant submits that the costs order against her on the interlocutory application should be limited to 75% of the Respondents’ costs for two reasons:

   (a)First, the Applicant contends that she had some success because during the interlocutory hearing the Respondents conceded that privilege had been waived in two documents, with the result that the Respondents were directed to discover those documents to the Applicant: Taylor (No 2) [35], [59].

   (b)Secondly, that the Applicant made her interlocutory application on the basis of an available misunderstanding of paragraph 19 of the Respondents’ Amended Defence filed on 10 March 2021. The interlocutory application served to clarify, in critical respects, the scope of the defence advanced by this paragraph and facilitated the Respondents correcting slips in the internal referencing in this paragraph.

3. The Applicant further submits that despite substantive correspondence between the parties, in which the Applicant exposed her understanding of paragraph 19 of the Amended Defence, the Respondents did not provide clarification as the scope of this part of their defence until filing their written submissions in opposition to the application.

4. The Respondents submit that pursuant to ordinary principles, the Respondents are entitled to recover their costs of the interlocutory application as they were successful on each of the substantive issues in the interlocutory application. In response to the Applicant’s submissions, the Respondents submit that there should not be a departure from the usual order for the following reasons:

   (a)First, that the Respondents properly conceded that privilege had been waived in two…