FEDERAL COURT OF AUSTRALIA

InterPharma Pty Ltd v Hospira, Inc (No 2) [2017] FCA 1280

ORDERS

THE COURT ORDERS THAT:

1.    The costs of the application for an interim injunction dated 6 September 2017 be reserved.

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

REASONS FOR JUDGMENT

KENNY J:

Introduction

1    On 11 September 2017, on the application of Hospira, Inc and Pfizer Australia Pty Ltd (collectively, Pfizer), the Court granted interim injunctive relief restraining InterPharma Pty Ltd (InterPharma) from offering to supply and supplying certain products (the InterPharma Products) until the hearing and determination of Pfizer’s claim for interlocutory injunctive relief. This is set down for hearing on 23 November 2017.

2    Also on 11 September 2017, the Court ordered that:

Unless a party notifies the Court in writing by 4:00 pm on 13 September 2017 that it opposes this order as to costs, the cross-respondent pay the cross-claimants’ costs of the application for interim injunction, as agreed or taxed.

3    InterPharma duly notified the Court that it opposed the making of an order that it pay Pfizer’s costs of the application for interim injunctive relief. The parties subsequently filed written submissions on the appropriate costs order.

competing Submissions as to costs

4    By its written submissions, InterPharma contended that costs should be reserved, essentially because relief had in the present case only been obtained on an interim basis, noting that the purpose of such relief was to preserve the status quo in order that the interlocutory application was not frustrated.

5    Pfizer submitted in written submissions that the justice of the case warranted an order that InterPharma pay its costs of the application for an interim injunction, because, amongst other factors, that relief was necessary to restrain InterPharma from launching and selling the InterPharma Products, thereby “rendering nugatory the hearing of the interlocutory injunction application on 23 November 2017”; and InterPharma “actively contested the application and opposed the grant of interim relief” in a number of identified ways. Pfizer also submitted that the outcome of the interlocutory injunction application hearing would be irrelevant to the apportionment of costs liability in respect of the interim injunction application.

Disposition as to costs

6    Under s 43(2) of the Federal Court of Australia Act 1976 (Cth), the disposition of costs is at the discretion of the Court, although it is well-established that this discretion must be exercised judicially: see, for example, Ruddock v Vadarlis (No 2) (2001) 115 FCR 229 at 234 [9]. Any question as to the disposition of costs falls to be considered on its merits, having regard to relevant principles and the circumstances of the case.

7    Having regard to these matters, I accept that, as InterPharma submitted, the more appropriate order at this point in the proceedings is that costs be reserved. The injunctive relief granted on 11 September 2017 was on an interim basis only, to preserve the status quo pending the hearing and determination of Pfizer’s interlocutory injunction application and to ensure that that application was not frustrated. I accept that, as InterPharma submitted, the hearing proceeded on very short notice and was conducted on the basis that a full interlocutory hearing would follow on 23 November 2017.

8    Pfizer’s submissions pointed in part to considerations relied on in support of the interim injunction application, which do not, in the circumstances, persuade me against the greater appropriateness of a reserved costs order. Further, although, as Pfizer emphasised, the hearing of that application did not proceed ex parte, at the forthcoming hearing of the interlocutory injunction application, Pfizer will nonetheless need to establish that interlocutory relief should be continued to trial: see Resort Hotels Management Pty Ltd v Resort Hotels of Australia Pty Ltd (1991) 22 NSWLR 730 at 731.

9    In all the circumstances, it appears to me that it is most appropriate that the costs of the interim injunction application should be reserved, on the basis that this order may be revisited after the interlocutory hearing.

Associate:    

Dated:    1 November 2017

SCHEDULE OF PARTIES