FEDERAL COURT OF AUSTRALIA

Generic Health Pty Ltd v Bayer Pharma Aktiengesellschaft [No 2] [2018] FCAFC 210

ORDERS

THE COURT ORDERS THAT:

1.     The appeal be allowed in part.

2.     In Order 1 of the orders of the Court made on 4 April 2017:

(a)    the sum of $25,437,966 be replaced by $24,929,207; and

(b)    the sums of $5,923,735 and $5,300 be replaced respectively by $5,805,260 and $5,194.

3.     The Respondents pay to the Appellants the amount of $634,653 by way of reimbursement for the amount overpaid to the Respondents by the Appellants pursuant to Order 1 of the orders made by the Court on 4 April 2017.

4.     The Respondents pay the Appellants the sum of $49,972 by way of interest on the amount referred to in Order 3 above up to 31 October 2018 (and a further $130 per day thereafter).

5.     The Appellants pay 40% of the Respondents’ costs of the appeal as agreed or taxed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1    We refer to our principal judgment on appeal: Generic Health Pty Ltd v Bayer Pharma Aktiengesellschaft [2018] FCAFC 183.

1    The parties are at issue as to the proper order for costs of the appeal, but are otherwise agreed on the form of orders.

2    Neither party wishes to disturb the orders for costs made by the primary judge.

3    Generic Health submitted that it was successful in part and that, as a consequence, Bayer should pay a significant part of its costs, identifying 50%. In the alternative, the submission was put that each party bear its own costs of the appeal.

4    Bayer sought an order for 95% of its costs.

5    As is often the case in debates about costs, the appropriate and fair burden of costs lies somewhere between the parties’ submissions.

6    Whilst Generic Health was successful and will, by the orders, recover some of the judgment it has paid, an examination of the issues and costs of the whole appeal reveals that Bayer was substantially successful. It is unnecessary to consider other cases in which costs have been awarded, or not as the case may be, by reference to issues. Much depends in each case on the relationship of the issues in dispute. Ultimately, it is a question of the interests of justice and the fair and just resolution of the dispute that is to be determined. It is sufficient to say here that it would be unjust and unfair for Bayer not to receive a not insignificant proportion of its costs, given the broad success that it had over the whole of the appeal. We consider that Generic Health should pay 40% of Bayer’s costs.

7    Thus, with that addition, the orders will be as agreed by the parties to reflect our principal reasons.

Associate:

Dated:    27 November 2018