Eveready Australia Pty Ltd v Gillette Australia Pty Ltd (No 5) [2000] FCA 167

FEDERAL COURT OF AUSTRALIA

Eveready Australia Pty Ltd v Gillette Australia Pty Ltd (No 5) [2000] FCA 167 COSTS – indemnity costs – respondent succeeded in opposing applicant's application for interlocutory injunction – certain remarks of judge capable of being regarded as generally favourable to respondent as to ultimate outcome of proceeding – offer by applicant to settle for injunction in its favour less extensive than those it obtained when it succeeded on final hearing – whether applicant should have its costs of the proceeding generally on indemnity basis – whether there should be special costs order in relation to interlocutory hearing in favour of respondent – survey evidence – applicant notified respondent under Practice Note 11 of its intention to conduct market survey and supplied to respondent copy of proposed questionnaire – respondent's non-compliance with Practice Note 11 – implications for costs – generally costs order in favour of applicant not qualified to exclude costs associated with survey, even if respondent's criticisms of survey had substance because respondent had not attempted to overcome disagreement with applicant as required by Practice Note 11. EVEREADY AUSTRALIA PTY LIMITED v GILLETTE AUSTRALIA PTY LIMITED NG 1205 of 1998 LINDGREN J 17 FEBRUARY 2000 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 1205 OF 1998

BETWEEN: EVEREADY AUSTRALIA PTY LIMITED (ACN 003 539 026)

Applicant

AND: GILLETTE AUSTRALIA PTY LIMITED (ACN 000 011 914)

Respondent

JUDGE: LINDGREN J

DATE: 17 FEBRUARY 2000

PLACE: SYDNEY

THE COURT DECLARES:

1. That in causing the three advertisements being annexures A1, A2 and A3 to this document ("the Advertisements") to be broadcast, the respondent in trade or commerce engaged in conduct that was misleading and deceptive in contravention of s 52 of the Trade Practices Act 1974 and made false representations in contravention of s 53(a) and (c) of that Act. 2. That in causing the billboard advertisement in the form of annexure "B" to this document ("the Billboard Advertisement"), to be exhibited, the respondent in trade or commerce engaged in conduct that was misleading and deceptive in contravention of s 52 of the Trade Practices Act 1974 and made false representations in contravention of s 53(a) and (c) of that Act. 3. That in causing each of the three stickers in the form of annexures C1, C2 and C3 to this document ("the Stickers") to be exhibited, the respondent, in trade or commerce, engaged in conduct that was misleading and deceptive in contravention of s 52 of the Trade Practices Act 1974 and made false representations in contravention of s 53(a) and (c) of that Act.