Autodesk Inc & Ors v Ginos Engineers Pty Ltd & Anor - [2007] FMCA 1848

FEDERAL MAGISTRATES COURT OF AUSTRALIA

AUTODESK INC & ORS v GINOS ENGINEERS
PTY LTD & ANOR

[2007] FMCA 1848

COPYRIGHT – Alleged infringement of copyright of licensed software in contravention of s.36 of the Copyright Act 1968 (Cth).

PRACTICE AND PROCEDURE – Application for transfer of proceedings from the Sydney Registry to the Adelaide Registry of the Federal Magistrates Court – application refused.

Copyright Act 1968 (Cth)
Federal Court of Australia Act 1976 (Cth), s.48
Federal Court Rules (Cth), O.10 r.1, O.30 r.6
Federal Magistrates Act 1999 (Cth), s.52
Federal Magistrates Court Rules 2001 (Cth), r.8.01
Federal Magistrates Regulations 2000 (Cth)

Australian Competition & Consumer Commission v Pauls Ltd [2002] FCA 71
National Mutual Holdings Pty Ltd and Orders v The Sentry Corporation and Another (1988) 19 FCR 155
Ogawa v The University of Melbourne [2005] FCA 1139

First Applicant:

AUTODESK INCORPORATED

Second Applicant:

AUTODESK ASIA PTY LTD

Third Applicant:

AUTODESK AUSTRALIA PTY LTD

First Respondent:

GINOS ENGINEERS PTY LTD

Second Respondent:

ZISIS GINOS

File number:

SYG 2536 of 2007

Judgment of:

Lloyd-Jones FM

Hearing date:

29 October 2007

Delivered at:

Sydney

Delivered on:

5 November 2007

REPRESENTATION

Counsel for the Applicants:

Mr JM Hennessy

Solicitors for the Applicants:

Gilbert + Tobin

Counsel for the Respondents:

Mr RW Evans

Solicitors for the Respondents:

Peter Scragg & Associates

ORDERS

The application to transfer these proceedings from the Sydney Registry to the Adelaide Registry is dismissed.
The respondents, Ginos Engineers Pty Ltd and Zizis Ginos, pay the applicants, Autodesk Incorporated, Autodesk Asia Pte Ltd and Autodesk Australia Pty Ltd, costs of this application.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2536 of 2007

AUTODESK INCORPORATED

First Applicant

And

AUTODESK ASIA PTE LTD

Second Applicant

And

AUTODESK AUSTRALIA PTY LTD

Third Applicant

And

GINOS ENGINEERS PTY LTD

First Respondent

And

ZISIS GINOS

Second Respondent

REASONS FOR JUDGMENT

The Proceedings

The first applicant, Autodesk Incorporated, is a corporation incorporated in the United States of America and engaged in the business of making and licensing software. The second applicant, Autodesk Asia, is a corporation incorporated in Singapore and engaged in the business of licensing software in Australia through Autodesk Incorporated’s Australian subsidiary, Autodesk Australia Pty Ltd, the third applicant. I will name the three applicants collectively as “the Autodesk group”. The Autodesk group control in Australia a suit of computer software (“Autodesk software”), each piece of which is and was at all material times an original literally work within the meaning of the Copyright Act 1968 (Cth). The first respondent, Ginos Engineers Pty Ltd, is an Australian company based in Adelaide engaged in the business of providing civil Engineers consultancy services including advice, design and supervision. The second respondent, Mr Ginos, is the sole director, secretary, shareholder and manager of Ginos Engineers. Ginos Engineers held software licenses for Autodesk software. However it is alleged that from a date unknown to the Autodesk group, Ginos Engineers reproduced in a material form copies of the Autodesk software without a license (infringing copies).
The Autodesk group,…

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: [2007] FMCA 1848
Decision Date: 5 November 2007

CaseChat Overview and Summary

The case before the Federal Court involved a dispute between Autodesk Inc and its affiliates, and Ginos Engineers Pty Ltd and Zizis Ginos. The plaintiffs, who are developers of computer-aided design software, sought to enforce intellectual property rights against the defendants, who were alleged to have infringed those rights. The case centred on the question of jurisdiction and the appropriate location for the proceedings to be heard. The plaintiffs applied to transfer the proceedings from the Sydney Registry to the Adelaide Registry, while the defendants opposed the application.

The primary legal issue for the court to decide was whether it was appropriate to transfer the proceedings to the Adelaide Registry under the relevant provisions of the Federal Court Rules. The court had to consider whether the transfer was necessary for the administration of justice and whether it was in the interests of the parties and the court. The court also had to consider the convenience of the witnesses and the location of the relevant documents and evidence.

The court found that the application to transfer the proceedings was not justified. The court held that the plaintiffs had not demonstrated any significant advantage to the administration of justice in transferring the proceedings to the Adelaide Registry. The court also found that the transfer would not be in the interests of the parties and the court, as it would result in additional costs and inconvenience. The court further held that the location of the witnesses and the evidence did not warrant a transfer of the proceedings. The court therefore dismissed the application and ordered the respondents to pay the costs of the application.

Orders

Orders of the court

The application to transfer these proceedings from the Sydney Registry to the Adelaide Registry is dismissed.

The respondents, Ginos Engineers Pty Ltd and Zizis Ginos, pay the applicants, Autodesk Incorporated, Autodesk Asia Pte Ltd and Autodesk Australia Pty Ltd, costs of this application.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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