Encompass Corporation Pty Ltd v Infotrack Pty Ltd

1. The Applicants pay the Respondent's costs of the main proceeding and the proceeding on the cross-claim as taxed or agreed.
2. The amount in order 1 be reduced by 45%.
3. No order as to costs in relation to the costs argument. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

PERRAM J: 1 On 29 March 2018 I delivered reasons for judgment in which I concluded that the Applicants' Amended Originating Application alleging patent infringement should be dismissed and that the Respondent's cross-claim seeking revocation of the two patents in question should be upheld: Encompass Corporation Pty Ltd v Infotrack Pty Ltd [2018] FCA 421 at [237]. Orders giving effect to these conclusions were made on 12 April 2018. There remains the question of costs. 2 The Applicants were successful on ten of the eleven issues ventilated at trial. It is accepted by both sides, therefore, that the Applicants should not have to bear all of the Respondent's costs of the trial. The general principle that the successful party is entitled to its costs is agreed not to be the point of departure in this case. The parties differ only as to the amount of the appropriate reduction which is to be applied. The Applicants submit that the costs of its proceeding and those of the Respondent's cross-claim should be dealt with globally by means of a single costs order and that that costs order should then be reduced by 70%. The Respondent submits that the reduction should only be 25%. At the hearing of the costs debate it also submitted that it might be appropriate to deal with the costs of the cross-claim separately to those of the main proceeding. Although I see some force in that submission I think it would be more practical to treat the matter globally as it will simplify any subsequent taxation. The issues relating to the cross-claim can, in any event, be brought to account in the selection of the appropriate reduction rate. 3 As it is not in issue that there should be some reduction the only issue is by how much. The proposed apportionment is on the basis of success or failure on distinct issues which is a recognised category of case where apportionment may be appropriate: see Ruddock v Vadarlis (No 2) [2001] FCA 1865; 115 FCR 229 at 236 [15] per Black CJ and French J. 4 The issues in the proceedings were: