We Two Pty Ltd v Shorrock

[2002] FCA 875

FEDERAL COURT OF AUSTRALIA

We Two Pty Ltd v Shorrock [2002] FCA 875

COSTS – action settled – costs order made – matters to be taken into account

Trade Marks Act 1995 Cth – s 100

Australian Securities Commission v Aust-Home Investments Ltd (1993) 44 FCR 194 applied
J. T. Stratford and Son Ltd v Lindley No 2 [1969] 1 WLR 1547 applied
Minister for Immigration and Ethnic Affairs, re; Ex parte Lai Qin (1997) 186 CLR 622 applied
South East Queensland Electricity Board v Australian Telecommunication Commission (Pincus J, 10 February 1989, unreported) referred to

WE TWO PTY LTD v GLENN BARRIE SHORROCK, GERARD BERTELKAMP and GRAEHAME GOBLE

V 256 of 2002

FINKELSTEIN J
12 JULY 2002
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 256 of 2002

BETWEEN:

WE TWO PTY LTD
Applicant

AND:

GLENN BARRIE SHORROCK,
GERARD BERTELKAMP and
GRAEHAME GOBLE
Respondents

AND BETWEEN:

AND:

THE LITTLE RIVER BAND PTY LTD
Cross-Claimant

WE TWO PTY LTD
Cross-Respondent

JUDGE:

FINKELSTEIN J

DATE OF ORDER:

12 JULY 2002

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

The respondents pay one half of the applicant’s taxed costs of the proceeding.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 256 of 2002

BETWEEN:

WE TWO PTY LTD
Applicant

AND:

GLENN BARRIE SHORROCK,
GERARD BERTELKAMP and
GRAEHAME GOBLE
Respondents

AND BETWEEN:

AND:

THE LITTLE RIVER BAND PTY LTD
Cross-Claimant

WE TWO PTY LTD
Cross-Respondent

JUDGE:

FINKELSTEIN J

DATE:

12 JULY 2002

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

1. The dispute between three former members of the rock band, Little River Band, and the company in which they once had an interest has been resolved, save for the question of costs.  The parties do not wish to continue with litigation.  But they ask me to rule on costs although there will never be a trial on the merits.  The cases tell me that I have the power to award costs in these circumstances.  How that power should be exercised will often be a matter of some difficulty.  But before I turn to that issue, I should briefly set out the facts.

2. The Little River Band was established in 1975.  In due course it was decided that the band should be “owned” by a trust of which the applicant, We Two Pty Ltd, would be the trustee and the members of the band, or companies controlled by them, would be the beneficiaries.  This arrangement was put into effect with the result that, among other things, We Two became registered as the proprietor of the Australian Trade Mark A502665 “LITTLE RIVER BAND”, registered in class 41 in respect of “Entertainment Services”.  It also became the owner of the common law mark “LRB” and a distinctive logo comprising the depiction of a “rampant platypus” enclosed in a circle and overwritten with the words “LITTLE RIVER BAND”.

3. Not surprisingly, the constitution of the band changed over the years.…