FEDERAL COURT OF AUSTRALIA

Clorox Australia Pty Ltd v International Consolidated Business Pty Ltd (No 2) [2005] FCA 1160

CLOROX AUSTRALIA PTY LTD and LOURENCE CORNELIUS JOHANNES GREYVENSTEIN v INTERNATIONAL CONSOLIDATED BUSINESS PTY LTD and PHILIP CRAIG WITHERS

VID 712 of 2005

SUNDBERG J

22 AUGUST 2005

MELBOURNE

RULING

1                     On 18 August 2005 I stayed the principal application herein pending delivery of judgment in proceeding No V558 of 2002: Clorox Australia Pty Ltd v International Consolidated Business Pty Ltd [2005] FCA 1135. I made no order as to costs of the application for a stay, the intention being that the parties would bear their own costs.

2                     The respondents have submitted that since they were wholly successful on the application for a stay, the rule that costs ordinarily follow the event should be applied.

3                     Costs orders are discretionary. In an appropriate case the ordinary rule can be departed from. In the present case the exclusive licence was not executed until 30 May 2005, and was not recorded in the Register of Patents until 22 June 2005, the very date on which the hearing of V558 of 2002 began. In my earlier reasons (at [12]‑[14]) I said the grant of the licence was effective upon execution and that its non‑registration was no legal impediment to the applicants seeking to join the dispute the subject of the present proceeding with V558 of 2002. Nevertheless they were in a difficult practical position, whether the matter be viewed as at 22 June or at the date of the execution of the licence, which was only three weeks before the trial was due to commence. They decided not to dislocate the progress or the hearing of V558 of 2002, and subsequently issued a separate proceeding. I do not regard that as an unreasonable decision. Indeed I have serious doubts as to whether the joinder of the new cause of action would have been allowed to derail the progress or hearing of V558 of 2002. In the circumstances, the appropriate order is that the parties bear their own costs.

Associate:

Dated:              22 August 2005