Dr Martens Australia Pty Ltd v Figgins Holdings Pty Ltd (No 2) [2000] FCA 602

FEDERAL COURT OF AUSTRALIA

Dr Martens Australia Pty Ltd v Figgins Holdings Pty Ltd (No 2) [2000] FCA 602

COSTS – party and party basis – four related proceedings heard together – respondents' relied on evidence common to all proceedings – substantial savings in court time – applicants successful in only one proceeding – costs follow event for unsuccessful respondents - proportion of costs to be paid by unsuccessful respondents in respect of costs incurred by applicants for all proceedings. COSTS – party and party basis – four related proceedings heard together – applicants successful in only one proceeding – applicants sought reductions in costs payable to respondents in proceedings where applicants unsuccessful – reductions sought based on conduct prior to and during hearing – only reduction allowed based on costs thrown away by reason of late amendment of defences. COSTS – indemnity basis – action against several respondents – one respondent found not to be involved in conduct which formed the basis of the action – respondent not called for cross‑examination – proceeding not discontinued against him – indemnity costs awarded after closing of case against other respondents. COSTS – indemnity basis – Calderbank letter – offer not exclusive of money claim and party and party costs – consent injunctions proposed by applicants and respondents as part of terms of offer – injunctions sufficiently different to make rejection of the offer by applicants not imprudent – offer not suitable for consideration as a Calderbank offer. Trade Practices Act 1974 (Cth): s 52 Federal Court of Australia Act 1976 (Cth): s 43(2) Federal Court Rules: O 23, O 62 rr12, 19 and 31 Calderbank v Calderbank [1976] Fam 93 cited Colgate‑Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225 distinguished John S Hayes & Associates Pty Ltd v Kimberly‑Clark Australia Pty Ltd (1994) 52 FCR 201 cited Flemington Properties Pty Ltd v Raine & Horne Commercial Pty Ltd (unreported, Lehane J, 11 February 1998) cited Donnelly v Edelsten (1994) 121 ALR 333 cited Smallacombe v Lockyer Investment Co Pty Ltd (1993) 42 FCR 97 applied Yorke v Lucas (1985) 158 CLR 661 considered Hughes v Western Australian Cricket Association (Inc) (1986) ATPR 40‑748 cited