Wright Rubber Products Pty Ltd v Bayer AG (No 2)
[2010] FCAFC 107
•3 September 2010
FEDERAL COURT OF AUSTRALIA
Wright Rubber Products Pty Ltd v Bayer AG (No 2) [2010] FCAFC 107
Citation: Wright Rubber Products Pty Ltd v Bayer AG (No 2)
[2010] FCAFC 107Appeal from: Wright Rubber Products Pty Ltd v Bayer AG (No 2)
[2009] FCA 1317Parties: WRIGHT RUBBER PRODUCTS PTY LTD (ACN 075 384 100) v BAYER AG, BAYER AUSTRALIA LTD (ACN 000 138 714), CHEMTURA CORPORATION, CROMPTON MANUFACTURING COMPANY, INC and CHEMTURA AUSTRALIA PTY LTD (ACN 005 225 507) File number: VID 837 of 2009 Judges: MOORE, JESSUP AND DODDS-STREETON JJ Date of judgment: 3 September 2010 Date of hearing: 24 May 2010 Place: Melbourne Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 10 Counsel for the Appellant: Mr A J L Bannon SC with Mr I S Wylie Solicitor for the Appellant: Maurice Blackburn Lawyers Counsel for the First and Second Respondents: Mr C Moore Solicitor for the First and Second Respondents: Baker & McKenzie Solicitors Counsel for the Third and Fifth Respondents: Mr P Crutchfield with Mr L Merrick Solicitor for the Third and Fifth Respondents: Mallesons Stephen Jaques
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 837 of 2009
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA
BETWEEN: WRIGHT RUBBER PRODUCTS PTY LTD (ACN 075 384 100)
ApplicantAND: BAYER AG
First RespondentBAYER AUSTRALIA LTD (ACN 000 138 714)
Second RespondentCHEMTURA CORPORATION
Third RespondentCHEMTURA AUSTRALIA PTY LTD (ACN 005 225 507)
Fifth Respondent
JUDGES:
MOORE, JESSUP AND DODDS-STREETON JJ
DATE OF ORDER:
3 SEPTEMBER 2010
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The respondents pay the applicant’s costs of the application and of the appeal.
2.The respondent pay three‑quarters of the applicant’s costs of the respondents’ notices of motion which were determined by the primary Judge in his orders made on 13 November 2009.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 837 of 2009
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA
BETWEEN: WRIGHT RUBBER PRODUCTS PTY LTD (ACN 075 384 100)
ApplicantAND: BAYER AG
First RespondentBAYER AUSTRALIA LTD (ACN 000 138 714)
Second RespondentCHEMTURA CORPORATION
Third RespondentCHEMTURA AUSTRALIA PTY LTD (ACN 005 225 507)
Fifth Respondent
JUDGES:
MOORE, JESSUP AND DODDS-STREETON JJ
DATE:
3 SEPTEMBER 2010
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
MOORE J
When the Full Court gave judgment on 13 July 2010 I indicated that leave to appeal should be granted and the appeal allowed with costs. I also indicated the notices of motion of the third and fifth respondents of 11 December 2008, of the second respondent of 13 January 2009 and of the first respondent of 3 February 2009 seeking the striking out of the applicant's amended statement of claim should be dismissed with costs. The other members of the Full Court took a slightly different approach with the result that it is now necessary to consider what costs orders should be made having regard to the orders actually made by the Full Court which were not the orders I proposed.
To the extent that I continue to have a deliberative role in determining how the costs orders should be framed, I express my agreement with the orders proposed by Jessup and Dodds-Streeton JJ and their reasons which I have gratefully read in a draft form.
I certify that the preceding two (2) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore. Associate:
Dated: 3 September 2010
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 837 of 2009
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA
BETWEEN: WRIGHT RUBBER PRODUCTS PTY LTD (ACN 075 384 100)
ApplicantAND: BAYER AG
First RespondentBAYER AUSTRALIA LTD (ACN 000 138 714)
Second RespondentCHEMTURA CORPORATION
Third RespondentCHEMTURA AUSTRALIA PTY LTD (ACN 005 225 507)
Fifth Respondent
JUDGES:
MOORE, JESSUP AND DODDS-STREETON JJ
DATE:
3 SEPTEMBER 2010
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
JESSUP AND DODDS-STREETON JJ
On 13 July 2010, we granted the application for leave to appeal, and allowed the appeal, in this proceeding: Wright Rubber Products Pty Ltd v Bayer AG [2010] FCAFC 85. The applicant has now sought an award of costs with respect to the application for leave and the appeal, and also with respect to the respondents’ notices of motion before the primary Judge seeking to have the Amended Statement of Claim struck out.
The applicant succeeded before the Full Court and would, in the normal course, be entitled to its costs of that proceeding. However, the respondents pointed to the fact that the Full Court replaced the orders originally made by the primary Judge with an order that paras 13 and 36 of the Amended Statement of Claim be struck out. They submitted, therefore, that both sides had enjoyed a measure of success before the Full Court, and that the appropriate outcome would be that no order be made with respect to costs at that level.
We do not the accept the approach proposed by the respondents. Had the primary Judge made the limited form of order which we made on appeal, it should not be assumed that the applicant would have been obliged to appeal, or would have appealed, from that order. Indeed, assuming, as we must, that such an order would have been the correct one to make in the circumstances, the probability is that the applicant would have corrected the defects in its pleading, as ultimately it was obliged to do.
In the circumstances, we are not persuaded that the applicant’s entitlement – which would arise in the normal course – to its costs of the application for leave and of the appeal is to any extent compromised by reason of the conclusion of the Full Court that two paragraphs in the Amended Statement of Claim should have been struck out by the primary Judge. We shall, therefore, give the applicant its costs of the application and of the appeal.
That leaves the question of the costs of the respondents’ notices of motion before the primary Judge. The applicant’s position was that, save for two relatively minor aspects, the position ultimately reached on appeal was that it should have succeeded in resisting those motions. The respondents took a position similar to that taken by them with respect to the costs in the Full Court, namely, that, by reason of the limited measure of success which each side ought to have achieved before the primary Judge, there should be no order as to the costs of those motions.
Had the primary Judge made the orders which ultimately were made on appeal, his Honour would have refused to strike out the Amended Statement of Claim as sought by the respondents, but would have struck out paras 13 and 36 only. It would have been within his Honour’s discretion to reflect the limited measure of success achieved by the respondents in any costs order which he made. There is something to be said for the idea that the issue of costs before the primary Judge should be referred back to his Honour, since he is likely to have a better idea of the relative contributions of the issues upon which the parties respectively succeeded to the costs which they incurred than we have, as a Full Court. However, no party suggested that we should adopt this course, and doing so would presumably involve a further hearing before his Honour, with its attendant costs. The parties have made submissions to us as to the way in which the costs before the primary Judge should be dealt with, and, although there is a sense in which we are doing so at one remove from the Judge most familiar with the questions involved, we are disposed to think that it is the more convenient course to adopt.
We take the view that some allowance should be made for the fact that the respondents ultimately achieved a measure of success on their notices of motion. However, there were two groups of respondents who were pressing co‑operatively for the same outcome. In these circumstances, we do not think it would be just to require the applicant to pay the costs of all four respondents associated with the two aspects of the motions upon which the respondents succeeded. A fairer and more appropriate course, in our view, would be to adjust the applicant’s entitlement to its costs on the motions by reference to the limited respects in which it must now be taken to have failed.
Taking everything into account, we are of the view that justice would be done if the respondents were required to pay three‑quarters of the applicant’s costs of the respondents’ notices of motion which were determined by the primary Judge in his orders made on 13 November 2009.
I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Jessup and Dodds-Streeton. Associate:
Dated: 3 September 2010
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