Fasold, David & Anor v Roberts, Allen & Anor [1997] FCA 933

Fasold, David & Anor v Roberts, Allen & Anor [1997] FCA 933

Because the proceedings involved two distinct causes of action with different parties benefiting from and liable on each claim, costs should be dealt with separately. The first applicant succeeded on the copyright claim and the Federal Court was an appropriate forum for that claim, so his costs should not be reduced under FCR, O 62, r 36A. The applicants failed on the non-copyright claim and there was no sufficient basis, public interest reason, or unreasonable conduct established to deprive the respondents of party and party costs or to award indemnity costs. The rejected offers did not adequately differentiate between the distinct claims and parties. Separate costs orders, rather than a...

Jurisdiction
Australia
Judgment Date
11 September 1997
Procedural Posture
Costs Application Following Judgment in Federal Court Proceedings Involving Copyright Infringement, Fair Trading Acts and Trade Practices Act Claims, and a Cross Claim / Reasons for Judgment and Orders on Costs After Principal Judgment Delivered on 2 June 1997
Outcome
Costs ordered separately by claim; first applicant awarded copyright costs against first respondent; respondents awarded party and party costs of non-copyright claim against applicants; each party to bear own costs of cross-claim.
Legal Topics
['discretion to Award Costs' 'apportionment of Costs Between Distinct Causes of Action' 'indemnity Costs' 'calderbank Offers' 'offers of Compromise Under Federal Court Rules, O 23' 'reduction of Costs Under Federal Court Rules, O 62, R 36 A' 'costs of Cross Claim']
['costs' 'copyright' 'trade Practices and Fair Trading' 'federal Court Procedure'] ['discretion to Award Costs' 'apportionment of Costs Between Distinct Causes of Action' 'indemnity Costs' 'calderbank Offers' 'offers of Compromise Under Federal Court Rules, O 23' 'reduction of Costs Under Federal Court Rules, O 62, R 36 A' 'costs of Cross Claim']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Costs Application Following Judgment in Federal Court Proceedings Involving Copyright Infringement, Fair Trading Acts and Trade Practices Act Claims, and a Cross Claim / Reasons for Judgment and Orders on Costs After Principal Judgment Delivered on 2 June 1997

Legal Issues

  1. 1 ['Whether costs should be considered separately for the copyright claim and the non-copyright claims under the Fair Trading Acts and the Trade Practices Act 1974 (Cth).' "Whether the first applicant's costs of the successful copyright claim should be reduced under FCR, O 62, r 36A(1) or r 36A(2)." "Whether the applicants should pay the respondents' costs of the unsuccessful non-copyright claim on an indemnity basis because of rejected settlement offers." 'Whether costs should be offset or apportioned by hearing time between the copyright and non-copyright claims.' 'What costs order should be made for the cross-claim.']

Ratio Decidendi

Because the proceedings involved two distinct causes of action with different parties benefiting from and liable on each claim, costs should be dealt with separately. The first applicant succeeded on the copyright claim and the Federal Court was an appropriate forum for that claim, so his costs should not be reduced under FCR, O 62, r 36A. The applicants failed on the non-copyright claim and there was no sufficient basis, public interest reason, or unreasonable conduct established to deprive the respondents of party and party costs or to award indemnity costs. The rejected offers did not adequately differentiate between the distinct claims and parties. Separate costs orders, rather than a...

Court Disposition

Costs ordered separately by claim; first applicant awarded copyright costs against first respondent; respondents awarded party and party costs of non-copyright claim against applicants; each party to bear own costs of cross-claim.

Orders

  • ["The first respondent pay the costs of the first applicant in respect of the claim for infringement of the first applicant's copyright, such costs not to be reduced under FCR, O 62, r 36A(1)." "The applicants pay the costs of the respondents in respect of the applicants' claim under the Fair Trading Acts and the...