AUSTRALIA Law and Practice Contributed by: John Lee, Siabon Seet, Vanessa Farago-Diener and Irini Lantis, Gilbert + Tobin
7.4 Attorney’s Fees Australian courts generally operate under a “loser pays” system, meaning that legal costs, including attorney/solicitor fees, are recoverable from the losing party. The extent of recovery is usually about 60% to 70% of the successful party’s actual legal costs. The award of costs is a discretionary exercise. When mak - ing a costs order, the court can consider the degree of success that each side has attained and any other relevant factors, such as the conduct of the parties during the proceedings, in determining whether to apportion costs. In making a costs order, the court can consider what is referred to in Australia as a “Calderbank” offer (that is, an offer to settle) and formal offers of compromise made during the proceedings. If the Calderbank offer or offer of compromise was reasonable in light of the final outcome of the proceedings and was made at an appropriate time in the proceedings, the court could potentially find that rejection was unreasonable and order the successful party to the proceedings to pay the unsuccessful party’s legal costs from the date of the offer. Additionally, a successful party to a proceeding may seek an indemnity costs order. These are awarded in exceptional circumstances, such as when the los - ing party has conducted the litigation in a particularly unreasonable or vexatious manner, eg, by making frivolous or baseless claims, misleading the court, or refusing reasonable offers to settle without justifica - tion. Indemnity costs cover a higher proportion of the winning party’s legal expenses, potentially up to the A successful plaintiff can seek to recover its legal fees (including attorney/solicitor and barrister fees), expert witness fees, court filing and hearing costs, as well as miscellaneous costs such as court transcripts. At the conclusion of proceedings, the court will either make an order outright in relation to costs or invite the parties to make submissions (written and/or oral) prior to making a final costs order. Typically, the court will make an order that the unsuccessful party pay, full amount. 7.5 Costs
• it suffered loss and damage (eg, lost profits or mar - ket share) as a result of the theft or disclosure of its trade secrets; and • the wrongdoer benefited by misuse of the trade secrets, such as by developing a new product it would not otherwise have been able to produce. Exemplary damages are available in Australia includ - ing for copyright infringement and breach of contract. This means that, in circumstances where trade secrets are protected by clauses in a contract preventing dis - closure, which are then breached, a plaintiff may seek exemplary damages for the breach of contract alone. 7.3 Permanent Injunction In Australia, permanent injunctions are an available mechanism of relief for trade secret plaintiffs. There are broadly two types of injunctions available. Types of Permanent Injunctions • Prohibitory injunctions – these can prevent the per - son against whom the injunction has been made from taking a specified action, such as releasing a product to the market that has been developed using improperly obtained trade secrets or disclos - ing those trade secrets (such as ex-employees who might seek to take trade secrets from former employers and provide them to a new employer). • Mandatory injunctions – these can compel the subject to take a specified action for the purpose of enforcing a legal right, such as withdrawing a product developed using improperly obtained trade secrets from the market. Obtaining a Permanent Injunction To successfully obtain a permanent injunction, a plain - tiff must demonstrate that: • the balance of convenience is in its favour, which requires showing that the defendant’s compliance with an injunction would be possible, not unrea - sonably burdensome, and that there would be minimal adverse effect on any third parties; • damages alone would not be a sufficient remedy; and • an injunction is necessary to prevent irreparable harm to its business or reputation.
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