Autodesk Inc. v Dyason

[1994] FCA 1107

J

(Not for Distribution)

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

GENERAL DIVISION No. VG68 of 1989

BETWEEN:  AUTODESK INC.

First Applicant

AUTODESK AUSTRALIA PTY LIMITED

Second Applicant

AND :	MARTIN PATRICK DYASON First Respondent
CHRISTINE DYASON

Second Respondent

PETER VINCENT KELLY

Third Respondent

CORM:	WILCOX, GUMMOW, HEEREY JJ.
PLACE :	MELBOURNE.
DATE :	6 JUNE 1994.

REASONS FOR JUDGMENT (EX TEMPOREL '

WILCOX J: There are two matters that have been raised today in applications for leave to appeal against orders made by Northrop J. on 25 October 1993. One matter concerns the order for costs of the trial that his Honour made whereby he ordered that the respondents at the trial, the applicants today, pay 90 per cent of the costs of the opposing party at the trial. It may be that leave to appeal is not necessary in respect of this order, but

Court to interfere with the order of Northrop J.

I find it unnecessary to determine that matter because the Court

has fully heard the applicants on their reasons for urging the

In my view, no reason has been demonstrated for the Court to take that course. It may well be the case that Mr and Mrs Dyason had a more peripheral interest in the litigation than did Mr Kelly, but being separately represented they chose to put in issue the matter of infringement of copyright. It seems to me that it is no answer to say that their decision to take this course did not extend the length of the trial. That may or may not be true, but even if it is true it cannot provide an answer because otherwise the other respondent could make the same reply, thus denying a successful applicant any order for costs at all. The fact is that both sets of respondents elected to take that particular course and failed, and they are therefore both vulnerable to a general order for costs.

It is also true that Autodesk ultimately succeeded in the High Court (Autodesk Inc. v Dvason (1992) 173 C.L.R. 330) on a view of the matter which was described by Dawson J. as being not at the forefront of their case, but the question whether the view that cornmended itself to the High Court was one fairly within the

case as pleaded and conducted at the trial was a matter the	subject of a separate decision of the High Court in Autodesk Inc.
v Dvason [No. 21 (1993) 176 C.L.R. 300. The High Court there, by a majority, held that the view was within the case as pleaded. This Court is bound by that ruling.
As to the matter of apportionment, Northrop J. thought that it was fair to say, having regard to his recollection of the course of the trial, that some 90 per cent of the trial was concerned with the issue of infringement of copyright, the issue upon which the present applicants failed, as distinct from the 10 per cent which dealt with issues on which they succeeded. It seems to me that it is impossible for a Full Court to interfere with a judgment such as that by a trial judge, at least in the absence of a very detailed analysis of the trial transcript. This has not been provided for us and I see no reason to doubt the reasonableness of his Honour's judgment on that matter. Accordingly, in my view, the applications for leave to appeal against the order for costs should be dismissed.
In relation to the second question raised today, namely his Honour's order for the provision of affidavits relatingto sales of Autokey, this matter has been substantially resolved during the course of the day. An undertaking has been given by counsel on behalf of the respondents to the present application, and I am of the opinion that the following order should be made: The Court notes the undertaking to the Court of Julian Stephens and Katerina Klaric, the principals of the firm Stephens Solicitors,
Australia Pty Limited, or any other person, the names or not to reveal to the applicants Autodesk Inc or Autodesk
addresses of the persons set out in the affidavits to be filed herein by the respondents, without further order of the Court or agreement in writing of the respondents. The Court further notes that the said undertaking does not prohibit the said solicitors from utilising the material to be set out in the said affidavits including, if necessary, contacting the said persons therein for the sole purpose of this proceeding. On the basis of that undertaking, the Court orders that the application by Peter'
Vincent Kelly to appeal against order,l made by Northrop J. on
25 October 1993 be dismissed. The Court further orders that the
period of 28 days referred to in order 1 shall commence from, today.
I am also of the view that having regard to the outcome of today's proceedings the appropriate order for costs is that the applicants pay the respondents' costs of the applications for leave to appeal.
GUMMOW J:  I agree and have nothing to add.
HEEREY J: I agree.

I certify that this and the preceding three

(3) pages are a true copy of the Reasons for

Judgment of the Court.

Associate:

Date :  4 *+, 1774-

Counsel and Solicitors for the Applicants:

M r A.K. Panna, instructed by Stephens Solicitors

The Respondents appeared in person (the First

Respondent appearing on behalf of the Second Respondent).

Date of Hearing: 6 June 1994
Date of Judgment: 6 June 1994