Chiropedic Bedding Pty Ltd v Radburg Pty Ltd [2009] FCA 1512

Chiropedic Bedding Pty Ltd v Radburg Pty Ltd [2009] FCA 1512

The cross-claimant was to pay the cross-respondent's costs of the cross-claim because the applicant was wholly successful on validity. For the infringement claim, although only two of 51 alleged infringements succeeded, about two-thirds of the case concerned general issues applicable across the beds and a broad apportionment of 70% of the applicant's costs payable by the respondent and 30% of the respondent's costs payable by the applicant was just. The applicant's motion to lift the confidentiality order was dismissed because the earlier order had served its purpose, the proposed lifting was inappropriate, and any future access to financial records for the account should be determined by...

Jurisdiction
Australia
Judgment Date
05 November 2009
Procedural Posture
Designs Act Infringement Proceeding and Cross Claim on Validity / First Instance Post Judgment Costs Ruling and Notice of Motion Concerning Confidentiality Order; Account of Profits Pending
Outcome
Costs apportioned; applicant's notice of motion dismissed with costs.
Legal Topics
['design Infringement' 'validity Cross Claim' 'account of Profits' 'costs Apportionment' 'confidentiality Orders' 'access to Books of Account']
['intellectual Property' 'designs' 'civil Procedure' 'costs'] ['design Infringement' 'validity Cross Claim' 'account of Profits' 'costs Apportionment' 'confidentiality Orders' 'access to Books of Account']

Case Brief

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Procedural Posture

Designs Act Infringement Proceeding and Cross Claim on Validity / First Instance Post Judgment Costs Ruling and Notice of Motion Concerning Confidentiality Order; Account of Profits Pending

Legal Issues

  1. 1 ["Whether costs of the applicant's infringement claims should be determined before the account of profits is taken." 'Whether costs of the cross-claim should follow the event.' 'How costs of the application should be apportioned where the applicant succeeded on two of 51 alleged infringements but much of the case concerned general issues.' "Whether the confidentiality order made on 29 June 2007 should be lifted to permit the applicant's officers and staff access to the respondent's books of account for the account of profits."]

Ratio Decidendi

The cross-claimant was to pay the cross-respondent's costs of the cross-claim because the applicant was wholly successful on validity. For the infringement claim, although only two of 51 alleged infringements succeeded, about two-thirds of the case concerned general issues applicable across the beds and a broad apportionment of 70% of the applicant's costs payable by the respondent and 30% of the respondent's costs payable by the applicant was just. The applicant's motion to lift the confidentiality order was dismissed because the earlier order had served its purpose, the proposed lifting was inappropriate, and any future access to financial records for the account should be determined by...

Court Disposition

Costs apportioned; applicant's notice of motion dismissed with costs.

Orders

  • ["Subject to previous costs orders made in this proceeding, the cross-claimant pay the cross-respondent's costs, including reserved costs, of the Cross-claim." "In relation to the Claim, the respondent pay 70% of the applicant's costs, including reserved costs." "In relation to the Claim, the applicant pay 30% of...