Australasian Performing Right Association Ltd v Pashalidis

FEDERAL COURT OF AUSTRALIA

Australasian Performing Right Association Limited v Pashalidis
[2000] FCA 1815

COSTS – bill of costs – whether costs should be reduced by one-third pursuant to O 62 r 36A(1) of Federal Court Rules – review of taxing officer’s decision to reduce costs – applicant obtained injunction and damages for infringement of copyright

Federal Court Rules O 62 r 36A(1)

Fasold v Roberts (unreported, Federal Court of Australia, Sackville J, 11 September 1997) applied
LED Builders Pty Ltd v Hope (1994) 53 FCR 10 applied

AUSTRALASIAN PERFORMING RIGHT ASSOCIATION LIMITED (ACN 000 016 099) v STEPHEN PASHALIDIS T/AS BODYWORKS FITNESS CLUBS

N 448 OF 1999

MOORE J
15 DECEMBER 2000
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 448 OF 1999

BETWEEN:	AUSTRALASIAN PERFORMING RIGHT ASSOCIATION LIMITED (ACN 000 016 099) APPLICANT
AND:	STEPHEN PASHALIDIS T/AS BODYWORKS FITNESS CLUBS RESPONDENT
JUDGE:	MOORE J
DATE OF ORDER:	15 DECEMBER 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.   The costs ordered to be paid to the applicant not be reduced under O 62 r 36A(1) of the Federal Court Rules.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 448 OF 1999

BETWEEN:	AUSTRALASIAN PERFORMING RIGHT ASSOCIATION LIMITED (ACN 000 016 099) APPLICANT
AND:	STEPHEN PASHALIDIS T/AS BODYWORKS FITNESS CLUBS RESPONDENT

JUDGE:	MOORE J
DATE:	15 DECEMBER 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application by the Australasian Performing Right Association Limited (“APRA”) for review, pursuant to O 62 r 11 of the Federal Court Rules (“the Rules”), of a decision of a taxing officer to apply O 62 r 36A(1) of the Rules to a bill of costs.

2. The main proceedings, now concluded, were brought by APRA under the Copyright Act 1968 (Cth). APRA alleged that the respondent had infringed and continued to infringe the copyright in musical and literary works (namely songs and lyrics) of which APRA was either the owner or the agent of the owner, by performing them or authorising their performance in his fitness centres. APRA sought an injunction, damages (or an account of profits), additional damages, and an inquiry as to damages or account of profits. On 14 September 1999, I made orders that the issues of liability and damages be determined separately. I then heard evidence and submissions from APRA on liability, and granted injunctive relief. On 29 June 2000 I heard argument concerning damages and on 2 August 2000, I ordered that the respondent pay APRA the sum of $15,669.22 by way of damages (including additional damages): see [2000] FCA 1032. Costs were also ordered against the respondent, who took no part in the proceedings.

3. The decision of the taxing officer is said to be found in a letter from the taxing officer notifying the parties, under O 62 r 46(3)(b), of the estimate of the approximate total for which, if the…