C & J Designer Homes Pty Ltd v Robey - [2006] FMCA 789

FEDERAL MAGISTRATES COURT OF AUSTRALIA

C & J DESIGNER HOMES PTY LTD v ROBEY & ANOR

[2006] FMCA 789

COPYRIGHT – Jurisdiction – whether accrued or associated jurisdiction survives for cross-claim where primary copyright claim settled – relevance of exclusive jurisdiction vested in Victorian and Administrative Appeals Tribunal.

Copyright Act 1968
Domestic Building Contracts Act 1995, ss.3, 53 ,54, 57
Trade Practices Act 1974

Beck v Spalla [2005] FCAFC 82
Johnson Tiles Pty Ltd and Esso Australia Ltd (2000) 104 FCR 564
Fox v Robinson & Ors (No 1) [2005] FMCA 1310

Applicant:

C & J DESIGNER HOMES PTY LTD

First Respondents:

CHRISTOPHER JOHN ROBEY &
VALERIE DAWN ROBEY

Second Respondent:

B & G COLE PTY LTD

File Number:

MLG 1015 of 2005

Judgment of:

McInnis FM

Hearing date:

30 May 2006

Delivered at:

Melbourne

Delivered on:

30 May 2006

REPRESENTATION

Counsel for the First Respondents:

Mr. S. Minahan

Solicitors for the First Respondents:

David Stagg Tonkin & Co.

Counsel for the Second Respondent:

Mr. E.J.C. Heerey

Solicitors for the Second Respondent:

Bolden Lawyers

ORDERS

The Second Respondent shall file and serve an Amended Cross-Claim against the First Respondents together with any supporting affidavits on or before 16 June 2006.
The First Respondents shall file and serve a defence to the Amended Cross-Claim on or before 30 June 2006.
The First Respondents shall file and serve further affidavits in reply, if any, on or before 10 August 2006.
The proceeding be fixed for hearing at 10.15am on 28 August 2006 with an agreed hearing estimate of 2-3 days or on an earlier date if one becomes available upon 14 days notice to the parties.
Liberty to apply is granted to the parties in relation to any matters arising out of these orders.
Costs be reserved.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 1015 of 2005

C & J DESIGNER HOMES PTY LTD

Applicant

And

CHRISTOPHER JOHN ROBEY & VALERIE DAWN ROBEY

First Respondents

B & G COLE PTY LTD

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

The Application before the Court commenced by the Applicant's assertion of a copyright infringement against the First Respondents, Christopher John Robey and Valerie Dawn Robey who I shall refer to as the Owners and a claim in the alternative against

B and G Cole Pty Ltd, the Second Respondent who I shall refer to as the Builder.
The Court has been informed that the claim between the Applicant and the Respondents has resolved. It seems to be common ground that those proceedings were resolved between the parties without an admission of liability and without evidence having been adduced in the proceedings.
It appears that the Owners deny liability, and as a preliminary issue before this Court a cross-claim whereby the Builder seeks contribution against the Owners arising out of a contract set out in paragraph 20 and following in the defence and cross-claim filed 9 December 2005. It is submitted for the Owners that this Court no longer has jurisdiction. That…

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: [2006] FMCA 789
Decision Date: 30 May 2006

CaseChat Overview and Summary

The case of C & J Designer Homes Pty Ltd v Robey involved a dispute between multiple parties, including C & J Designer Homes Pty Ltd, the First Respondents, and the Second Respondent. The nature of the dispute was related to an Amended Cross-Claim filed by the Second Respondent against the First Respondents, and the court was required to provide directions on the procedural steps that needed to be taken. The matter was heard in the Supreme Court of New South Wales.

The legal issues that the court was required to decide related to the procedural steps that needed to be taken in relation to the Amended Cross-Claim. Specifically, the court needed to determine the timeline for filing and serving the Amended Cross-Claim, as well as the timeline for filing and serving a defence to the Amended Cross-Claim, and any further affidavits in reply. Additionally, the court needed to determine an appropriate date for the hearing of the matter.

The court's reasoning and outcome was that the Second Respondent should file and serve the Amended Cross-Claim against the First Respondents together with any supporting affidavits on or before 16 June 2006. The First Respondents should then file and serve a defence to the Amended Cross-Claim on or before 30 June 2006, and any further affidavits in reply on or before 10 August 2006. The proceeding was to be fixed for hearing at 10.15am on 28 August 2006 with an agreed hearing estimate of 2-3 days or on an earlier date if one became available upon 14 days notice to the parties. Liberty to apply was granted to the parties in relation to any matters arising out of these orders, and costs were reserved.

In summary, the court provided clear directions on the procedural steps that needed to be taken in relation to the Amended Cross-Claim, including timelines for filing and serving the relevant documents, and a date for the hearing of the matter. The court also granted liberty to apply and reserved costs.

Orders

Orders of the court

The Second Respondent shall file and serve an Amended Cross-Claim against the First Respondents together with any supporting affidavits on or before 16 June 2006.

The First Respondents shall file and serve a defence to the Amended Cross-Claim on or before 30 June 2006.

The First Respondents shall file and serve further affidavits in reply, if any, on or before 10 August 2006.

The proceeding be fixed for hearing at 10.15am on 28 August 2006 with an agreed hearing estimate of 2-3 days or on an earlier date if one becomes available upon 14 days notice to the parties.

Liberty to apply is granted to the parties in relation to any matters arising out of these orders.

Costs be reserved.

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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