Baygol Pty Ltd v Huntsman Chemical Co Australia Pty Ltd t/a RMAX [2004] FCA 1248

FEDERAL COURT OF AUSTRALIA

Baygol Pty Ltd v Huntsman Chemical Co Australia Pty Ltd t/a RMAX [2004] FCA 1248 PRACTICE AND PROCEDURE – Costs – Security for costs – Application for security for costs in patent infringement proceeding – Impecunious applicant – Litigation funded by a third party - Dispute as to quantum of security – Dispute as to the inclusion of the cross-claim in assessment of security - Discretion of the Court - Principles governing security for costs – Complexity of matter - Need to retain senior and junior counsel – Consequences of inadequate security - Likely duration of hearing - Cross-claim essentially defensive in nature Patents Act 1990 (Cth) ss 121, 129 – Inclusion of cross-claim – Prospects of success - Application granted. Patents Act 1990 (Cth) s 117, s 121, s 129 Federal Court of Australia Act 1976 (Cth) s 56 KP Cable Investments Pty Limited v Meltglow Pty Limited (1995) 56 FCR 189 cited Olbers Co Ltd v Commonwealth of Australia [2002] FCA 1269 cited Gartner v Ernst & Young (No 3) [2003] FCA 1437 cited Weily's Quarries v Devine Shipping Pty Limited (1994) 14 ACSR 186 discussed Townsend Controls Pty Ltd v Gilead (1989) 14 IPR 443 discussed Farmitalia Carlo Erba SrL v Delta West Pty Ltd (1994) 28 IPR 336 discussed Maronis Holdings Ltd v Nippon Credit Australia Limited [2000] NSWSC 994 discussed Chartspike Pty Limited v Chahoud [2001] NSWSC 585 cited Rickard Constructions Pty Limited v Allianz Australia Insurance Ltd [2002] NSWSC 1162 cited BAYGOL PTY LTD v HUNTSMAN CHEMICAL COMPANY AUSTRALIA PTY LIMITED T/A RMAX N 1581 OF 2003 TAMBERLIN J SYDNEY 24 SEPTEMBER 2004

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1581 OF 2003

BETWEEN: BAYGOL PTY LTD

ACN 008 055 212

APPLICANT

AND: HUNTSMAN CHEMICAL COMPANY AUSTRALIA PTY LIMITED t/a RMAX