Arbitron Inc v Telecontrol Aktiengesellschaft (No 2) [2010] FCA 713

Arbitron Inc v Telecontrol Aktiengesellschaft (No 2) [2010] FCA 713

Indemnity costs were refused as AC Nielsen's proposal was not such a compromise offer that it was unreasonable for Arbitron to reject it. Because it was not possible to accurately apportion common costs between issues, and to avoid double recovery, the court ordered Arbitron to pay 85% of AC Nielsen's costs of the proceeding and made no order as to costs of the cross-claim or for the day's attendance.

Parties
Applicant: Arbitron Inc; First Respondent: Telecontrol Aktiengesellschaft; Second Respondent: AC Nielsen (Holdings) Pty Ltd
Jurisdiction
Australia
Judgment Date
25 June 2010
Procedural Posture
Patent Infringement and Revocation Proceeding / Costs Determination Following Substantive Resolution
Outcome
Applicant to pay 85% of second respondent's costs, no order as to cross-claim costs, no order as to costs of the day.
Legal Topics
Patent Infringement, Patent Validity, Revocation Proceedings, Costs Orders
Intellectual Property Law Civil Procedure Patent Infringement Patent Validity Revocation Proceedings Costs Orders

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Parties

Arbitron Inc

Applicant

Telecontrol Aktiengesellschaft

First Respondent

AC Nielsen (Holdings) Pty Ltd

Second Respondent

Procedural Posture

Patent Infringement and Revocation Proceeding / Costs Determination Following Substantive Resolution

Legal Issues

  1. 1 Whether Arbitron Inc should pay indemnity costs to AC Nielsen
  2. 2 Appropriate allocation of costs related to cross-claims with overlapping and separate issues between respondents
  3. 3 Whether Arbitron Inc should pay a proportion of common costs related to cross-claims and defences

Ratio Decidendi

Indemnity costs were refused as AC Nielsen's proposal was not such a compromise offer that it was unreasonable for Arbitron to reject it. Because it was not possible to accurately apportion common costs between issues, and to avoid double recovery, the court ordered Arbitron to pay 85% of AC Nielsen's costs of the proceeding and made no order as to costs of the cross-claim or for the day's attendance.

Court Disposition

Applicant to pay 85% of second respondent's costs, no order as to cross-claim costs, no order as to costs of the day.

Orders

  • The applicant pay 85% of the second respondent's costs of the proceeding, excluding the costs of and occasioned by the first respondent's notice of motion dated 24 May 2006.
  • There be no order as to the costs of the second respondent's cross-claim.