Boomerang Investments Pty Ltd v Padgett (Costs of the Liability Phase) [2021] FCA 385

Boomerang Investments Pty Ltd v Padgett (Costs of the Liability Phase) [2021] FCA 385

The Court applied a global approach rather than an issue-by-issue or party-by-party approach because the parties had mixed success and the issues overlapped. The Applicants were overall successful against Glass Candy and Air France, but not on all issues; false evidence prolonged the trial and justified adjustment of discounts, but did not warrant indemnity costs. Kobalt was successful against the Applicants, but indemnity costs were not warranted and a discount was appropriate because the Applicants succeeded on some issues involving Kobalt.

Jurisdiction
Australia
Judgment Date
21 April 2021
Procedural Posture
Costs Determination in Copyright Proceeding / Costs of the Liability Phase After Liability Judgment and Before Damages, Determined on the Papers
Outcome
Costs orders made for the liability phase.
Legal Topics
['costs Following Partial Success' 'issue by Issue Costs' 'party by Party Costs' 'global Approach to Costs' 'indemnity Costs' 'calderbank Offer' 'copyright Infringement' 'moral Rights']
['costs' 'intellectual Property' 'copyright'] ['costs Following Partial Success' 'issue by Issue Costs' 'party by Party Costs' 'global Approach to Costs' 'indemnity Costs' 'calderbank Offer' 'copyright Infringement' 'moral Rights']

Case Brief

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Procedural Posture

Costs Determination in Copyright Proceeding / Costs of the Liability Phase After Liability Judgment and Before Damages, Determined on the Papers

Legal Issues

  1. 1 ['Whether costs in relation to Glass Candy should be postponed until after the determination of damages' 'Whether costs should be determined on an issue-by-issue and party-by-party basis' 'What costs orders and discounts should be applied as between the Applicants and Glass Candy' 'Whether indemnity costs were warranted against Glass Candy' 'What costs orders and discounts should be applied as between the Applicants and Air France' 'Whether indemnity costs were warranted against Air France' 'Whether indemnity costs were warranted in favour of Kobalt' "Whether Kobalt's costs should be discounted"]

Ratio Decidendi

The Court applied a global approach rather than an issue-by-issue or party-by-party approach because the parties had mixed success and the issues overlapped. The Applicants were overall successful against Glass Candy and Air France, but not on all issues; false evidence prolonged the trial and justified adjustment of discounts, but did not warrant indemnity costs. Kobalt was successful against the Applicants, but indemnity costs were not warranted and a discount was appropriate because the Applicants succeeded on some issues involving Kobalt.

Court Disposition

Costs orders made for the liability phase.

Orders

  • ["The First Respondent and Second Respondent pay 50% of the Applicants' costs as taxed, assessed or agreed." "The Fourth Respondent pay 47.5% of the Applicants' costs as taxed, assessed or agreed." "The Applicants pay 90% of the Third Respondent's costs as taxed, assessed or agreed."]