Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
Dura-Post (Aust) Pty Ltd v Delnorth Pty Ltd (No. 2) [2009] FCAFC 93
DURA-POST (AUST) PTY LTD v DELNORTH PTY LTD
NSD 1392 of 2008
KENNY, STONE & PERRAM JJ
10 AUGUST 2009
SYDNEY IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION NSD 1392 of 2008
ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN: DURA-POST (AUST) PTY LTD
Appellant
AND: DELNORTH PTY LTD
Respondent
JUDGES: KENNY, STONE & PERRAM JJ
DATE OF ORDER: 10 AUGUST 2009
WHERE MADE: SYDNEY
THE COURT ORDERS THAT:
1. The Appellant pay the Respondent's costs of the appeal. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using eSearch on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
general division NSD 1392 of 2008
ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN: DURA-POST (AUST) PTY LTD
Appellant
AND: DELNORTH PTY LTD
Respondent
JUDGES: KENNY, STONE & PERRAM JJ
DATE: 10 AUGUST 2009
PLACE: SYDNEY
REASONS FOR JUDGMENT 1 On 30 June 2009 Dura-Post's appeal to this Court was dismissed. At the time we directed the parties to file any further submissions on costs by 10 July 2009. Submissions were received from both parties. 2 The appeal having been dismissed, Dura-Post accepts that it must pay Delnorth's costs of the appeal. It submitted, however, that the costs orders made against it by the primary judge should be varied. To understand the issues which arise it is necessary to rehearse a little of the procedural history of the matter. 3 His Honour delivered judgment on 13 August 2008 and stood the proceedings over for the purpose of settling the consequent orders and for the hearing of any argument on costs. It is not clear when the argument on costs took place but it does appear that his Honour made orders disposing of the matter, including costs, on 19 August 2008. 4 So that the orders are more readily comprehensible it is useful to recall that before the primary judge Delnorth was the applicant and had brought infringement proceedings. Dura-Post cross-claimed for declarations that Delnorth's patents were invalid. 5 Delnorth's infringement proceedings relied upon patents which have been called throughout this litigation Patent One, Patent Two and Patent Three. 6 Both parties had some success before the trial judge. On Delnorth's part, it succeeded in showing that Dura-Post's flexible steel roadside posts infringed a number of the claims in each of Patents One, Two and Three. Further it sought of, and obtained from, the learned primary judge orders enjoining Dura-Post from infringing those claims. 7 On the other hand, Dura-Post was not unsuccessful itself. It persuaded the learned primary judge that two of the claims in Patents Two and Patent Three should be revoked. That victory, however, did not prevent the trial judge from concluding, and hence declaring, that Dura-Post's Flexi-Steel and Reflex flexible steel roadside posts infringed Patent One, Patent Two and Patent Three. This was because the claims in respect of which that infringement was found to have occurred were unaffected by the revocation of the two claims in Patents Two and Three. Viewed from that perspective, the party who was substantially successful was Delnorth. 8 The relevant orders made by the primary judge on 19 August 2009 were orders 13 and 14 and were as follows: 13. The cross-claim otherwise be dismissed. 14. The Respondent pay the Applicant's costs of the application and the cross-claim to date, subject to the following: (a) the operation of costs orders already made in the proceedings; (b) the Applicant pay the Respondent's costs: (i) incurred after 5 July 2008 insofar as those costs relate to the particulars of invalidity of lack of innovative step based on United States Patent No US 3312156 (Pellowski); (ii) in relation to the integer of a surface coating; and (ii) in relation to the integer of longitudinally extending ribs. 9 No transcript of argument before his Honour on this issue was made available to us. Further, his Honour does not appear to have produced any reasons for orders 13 and 14. Neither party referred us to anything said in argument or to any aspect of his Honour's reasons (or absence of reasons).
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