Domino's Pizza Enterprises Limited v Precision Tracking Pty Ltd (No 5) [2018] FCA 48

Domino's Pizza Enterprises Limited v Precision Tracking Pty Ltd (No 5) [2018] FCA 48

Domino's and Navman were entitled to their costs thrown away because the adjournment of the trial was inevitable on the facts then available and was attributable to the conduct of the Precision parties, the immediate cause being inadequate discovery by Precision. However, the deficiency in discovery did not amount to a relevant delinquency or otherwise justify indemnity costs, so the costs were to be assessed on a party and party basis. The costs were not made payable forthwith and no lump sum order was made because of overlap or potential overlap, the undesirability of multiple taxation proceedings, possible set-offs, and the interlocutory character of the costs.

Jurisdiction
Australia
Judgment Date
05 February 2018
Procedural Posture
Interlocutory Costs Applications in Intellectual Property Patent Proceedings / After Adjournment of the Final Hearing on 28 November 2017
Outcome
The first to fourth respondents were ordered to pay the costs of the other parties thrown away by reason of the adjournment of the trial on a party and party basis; the applications were otherwise dismissed, with no order as to the costs of the interlocutory applications.
Legal Topics
['costs Thrown Away by Adjournment' 'indemnity Costs' 'party and Party Costs' 'costs Payable Forthwith' 'lump Sum Costs Orders' 'discovery Obligations']
['costs' 'civil Procedure' 'discovery' 'intellectual Property' 'patents'] ['costs Thrown Away by Adjournment' 'indemnity Costs' 'party and Party Costs' 'costs Payable Forthwith' 'lump Sum Costs Orders' 'discovery Obligations']

Case Brief

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Procedural Posture

Interlocutory Costs Applications in Intellectual Property Patent Proceedings / After Adjournment of the Final Hearing on 28 November 2017

Legal Issues

  1. 1 ["Whether Domino's and Navman should have their costs thrown away by reason of the adjournment of the trial." 'Whether those costs should be paid by the Precision parties on an indemnity basis.' 'Whether those costs should be payable forthwith.' 'Whether there should be a lump sum costs order in an amount set by a Registrar at a later date.']

Ratio Decidendi

Domino's and Navman were entitled to their costs thrown away because the adjournment of the trial was inevitable on the facts then available and was attributable to the conduct of the Precision parties, the immediate cause being inadequate discovery by Precision. However, the deficiency in discovery did not amount to a relevant delinquency or otherwise justify indemnity costs, so the costs were to be assessed on a party and party basis. The costs were not made payable forthwith and no lump sum order was made because of overlap or potential overlap, the undesirability of multiple taxation proceedings, possible set-offs, and the interlocutory character of the costs.

Court Disposition

The first to fourth respondents were ordered to pay the costs of the other parties thrown away by reason of the adjournment of the trial on a party and party basis; the applications were otherwise dismissed, with no order as to the costs of the interlocutory applications.

Orders

  • ['The first to fourth respondents pay the costs of the other parties thrown away by reason of the adjournment of the trial on 28 November 2017.' 'Those costs be assessed on a party and party basis.' "The applications brought by Domino's and by Navman in respect of their costs of the adjournment of the trial be...