Allergan Australia Pty Ltd v Self Care IP Holdings Pty Ltd (No 2) [2021] FCA 185

Allergan Australia Pty Ltd v Self Care IP Holdings Pty Ltd (No 2) [2021] FCA 185

The costs order in the appeal proceeding was set aside under the slip rule because the parties were not heard on costs and relevant facts (including settlement offers) were not considered—a qualifying accidental omission. Self Care was found 90% successful overall, so should receive 90% of its party/party costs, but was not entitled to costs on an indemnity basis as Allergan’s refusal of settlement offers was not unreasonable, nor was conduct vis-à-vis the notice to admit. Lump sum quantification was ordered, to be determined by agreement or referred to a Registrar.

Jurisdiction
Australia
Judgment Date
05 March 2021
Procedural Posture
Application and Cross Claim With Appeal / Determination of Post Trial Costs Under Slip Rule
Outcome
Self Care awarded 90% of party/party costs of both proceedings on a lump sum basis, to be quantified by agreement within 28 days or by Registrar; no indemnity costs awarded; prior appeal costs order set aside under slip rule.
Legal Topics
['costs' 'indemnity Costs' 'slip Rule' 'offers of Compromise' 'australian Consumer Law' 'trade Marks']
['intellectual Property' 'competition and Consumer Law' 'civil Procedure'] ['costs' 'indemnity Costs' 'slip Rule' 'offers of Compromise' 'australian Consumer Law' 'trade Marks']

Case Brief

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Procedural Posture

Application and Cross Claim With Appeal / Determination of Post Trial Costs Under Slip Rule

Legal Issues

  1. 1 ['Whether costs order previously made can be revisited under the slip rule in r 39.05(h) of the Federal Court Rules 2011 (Cth)' 'Whether indemnity costs should be awarded following Calderbank offers' 'Whether costs should be apportioned due to partial success and undertakings' 'Appropriate method for quantification of costs']

Ratio Decidendi

The costs order in the appeal proceeding was set aside under the slip rule because the parties were not heard on costs and relevant facts (including settlement offers) were not considered—a qualifying accidental omission. Self Care was found 90% successful overall, so should receive 90% of its party/party costs, but was not entitled to costs on an indemnity basis as Allergan’s refusal of settlement offers was not unreasonable, nor was conduct vis-à-vis the notice to admit. Lump sum quantification was ordered, to be determined by agreement or referred to a Registrar.

Court Disposition

Self Care awarded 90% of party/party costs of both proceedings on a lump sum basis, to be quantified by agreement within 28 days or by Registrar; no indemnity costs awarded; prior appeal costs order set aside under slip rule.

Orders

  • ['Applicants liable to Respondents for 90% of their party/party costs in these proceedings (NSD15/2017; NSD1802/2017).' 'If parties do not agree on quantification within 28 days, costs to be determined on a lump sum basis by a Registrar.' 'Order 2 of 22 October 2020 in the appeal proceeding is set aside.' 'Costs of...