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Australasian Performing Rights Association Ltd v Marlin

Australasian Performing Rights Association Ltd v Marlin

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FEDERAL COURT OF AUSTRALIA
Australasian Performing Rights Association Limited v Marlin [1999] FCA 1006
PRACTICE & PROCEDURE – circumstances where a lump sum costs order was appropriate – power to vary earlier order contemplating taxation of costs.
Federal Court Rules, Order 62 r 4(2)(c)
Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119 followed
Leary v Leary [1987] 1 All ER 261 applied
Auspine Ltd v Australian Newsprint Mills Limited [1999] FCA 673 referred to
Emanuele v Dau (1996) 133 FLR 312 followed
AUSTRALASIAN PERFORMING RIGHTS ASSOCIATION LIMITED v MARLIN & ANOR
NG 736 of 1998
Burchett J
8 July 1999
Sydney

IN THE FEDERAL COURT OF AUSTRALIA

GENERAL DISTRIBUTION

NEW SOUTH WALES DISTRICT REGISTRY

NG 736 of 1998

BETWEEN:

AUSTRALASIAN PERFORMING RIGHTS ASSOCIATION LIMITED
Applicant

AND:

RICHARD JOSEPH MARLIN
First Respondent

SOUTH LISMORE FIT FOR ALL PTY LTD
Second Respondent

JUDGE:

BURCHETT J

DATE:

8 JULY 1999

PLACE:

SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

In this matter, on a previous occasion, I granted injunctive relief. I did so on evidence, but in the absence of the respondents who, at no stage, have appeared, although served and notified both of that hearing and of the present hearing. I am satisfied the respondents have had adequate notice. On the earlier occasion, I stood over questions of damages, while granting injunctive relief and making, in general terms, an order that the respondents pay the costs.
What I am now asked to do, in order to bring this matter to a conclusion, is to vary the costs order previously made to order the payment of a lump sum in respect of costs, the applicant being willing to forego its claim for damages, seeking the lump sum costs instead. There is authority, in Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119, that the previous making of an order for costs in general terms is no bar to a subsequent order effectively varying that by ordering the payment of a lump sum of costs.
Adequate evidence has been placed before me upon which I am fully satisfied that the lump sum sought is justified, and indeed is substantially less than the amount at which costs might be expected to be taxed if I confined the relief to a costs order in general terms. In the Beach Petroleum case, and in a number of other cases to which I have been referred, Leary v Leary [1987] 1 All ER 261, Auspine Ltd v Australian Newsprint Mills Limited [1999] FCA 673 at paragraph 11 and Emanuele v Dau (1996) 133 FLR 312, the power which I have under Order 62 rule 4(2)(c), and the power conferred by equivalent rules in the United Kingdom and the Australian Capital Territory, have been described as powers particularly suited to complex litigation, where the costs of taxing a bill might be quite considerable and the delay and inconvenience involved might also be considerable. However, the rule is in general terms, and the power…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1999] FCA 1006
Decision Date: 8 JULY 1999

CaseChat Overview and Summary

The case of Australasian Performing Rights Association Limited v Marlin involved a dispute between the Australasian Performing Rights Association Limited (APR), an applicant, and Richard Joseph Marlin, the first respondent, and South Lismore Fit for All Pty Ltd, the second respondent. The nature of the dispute was primarily centred around copyright infringement and the costs associated with the litigation. The case was heard in the Federal Court of Australia, specifically in the New South Wales District Registry.

The legal issues the court had to address revolved around the appropriateness of ordering a lump sum for costs rather than proceeding with a detailed taxation of costs. The court had to consider the authority provided by cases such as Beach Petroleum NL v Johnson (No 2), Leary v Leary, Auspine Ltd v Australian Newsprint Mills Limited, and Emanuele v Dau to determine whether the power to vary an earlier order contemplating taxation of costs was applicable in this situation. Additionally, the court had to assess whether the lump sum costs order proposed by the applicant was justified based on the evidence presented.

Justice Burchett found that the authority in Beach Petroleum NL v Johnson (No 2) supported the notion that a previous order for costs in general terms did not preclude a subsequent order effectively varying that by ordering the payment of a lump sum of costs. The court was satisfied with the evidence provided by the applicant, which justified the lump sum sought, which was substantially less than what might be expected if a detailed taxation of costs was conducted. The court referenced the principles outlined in the cited cases, emphasizing that the discretion to fix a lump sum should be exercised in a judicial manner. The straightforwardness of the case, rather than its complexity, led the court to believe that a lump sum assessment would be more appropriate to avoid additional difficulties, inconvenience, and expense for the parties. The court ordered the respondents to pay $5932.80 as the applicant's assessed costs, dismissing the action but confirming the injunctive orders in place.

Orders