Cherry Red Pty Ltd v Calonsag - [2019] SADC 95

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Minor Civil Review)
CHERRY RED PTY LTD v CALONSAG
[2019] SADC 95
Reasons for Decision of His Honour Judge Tilmouth
10 July 2019
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES
Application to review a decision of a Magistrate refusing to set aside a default judgment on the basis of material not placed before the Magistrate. Discussion of the proper application of the power to set aside conferred by MCCR 87(2)(b) of the Magistrates Court (Civil) Rules 2013 (SA).
Magistrates Court (Civil) Rules 2013 (SA) r 87, r 87(2)(a) & (b), r 101; Magistrates Court Act 1991 (SA) s 38(6), s38(7)(c), s 38(7)(d)(i), s 38(7)(d)(ii), s 38(7)(d)(iii)(A), s 38(7)(d)(iii)(B); Harradine v District Court of South Australia (2012) 280 LSJS 572; Rem v Kargas Supreme Court of South Australia, Nyland J, 30 March 1994; Mortimer v State of South Australia [2001] SASC 37; Hunter Valley Developments Pty Ltd & Ors v The Hon Barry Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344; Passmore v Minahan (1887) 13 VLR 262; Burgoine v Taylor (1878) 9 Ch 1, referred to.
Langanis v Roberts Supreme Court of South Australia, Mullighan J, 15 July 1993; Davies v Pagett (1986) 70 ALR 793, applied.

CHERRY RED PTY LTD v CALONSAG
[2019] SADC 95
An action in the Magistrates Court

This application is to review a judgment given in a minor civil action challenging the correctness of a decision of a Magistrate refusing to set aside a judgment entered in default of appearance on the part of the applicant.
Proceedings brought in the name of Robert Calonsag in the underlying action, were issued in the Minor Civil jurisdiction of the Adelaide Magistrates Court. This claimed property damage against Cherry Red Pty Ltd,[1] caused by rear end collision to his motor vehicle. The action was in fact commenced by RAA Group Insurance exercising rights of subrogation under a Motor Vehicle Insurance Policy taken out by Mr Calonsag. The claim was defended on the basis that Cherry Red ‘have not had anyone on our staff or drivers notify us of an accident’ and that ‘it has no information of the accident’, according to the defence filed on 20 June 2018. The address for service was nominated as Cherry Red’s accountant at Lower Portrush Road, Marden.
[1] Hereafter referred to simply as ‘Cherry Red’.
The particulars of claim filed in the Magistrates Court pleads that on 26 April 2017 the plaintiff’s Toyota Kluger motor vehicle registered number S148-BHH was parked in Deloraine Road Edwardstown when the defendant’s Mitsubishi truck registered number S158-BHC collided with the rear of the Kluger. The case for Mr Calonsag on liability wholly depends on a note supposedly left at a nearby business by a person calling herself Anna in the note:[2]
… confirming that the defendant’s truck that she was in control of at the time and had collided with the plaintiff’s motor vehicle which was parked at the time.
The defence…

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.

Continue reading Cherry Red Pty Ltd v Calonsag

Details

AGLC: Cherry Red Pty Ltd v Calonsag [2019] SADC 95
Case: [2019] SADC 95
Decision Date: 10 July 2019

CaseChat Overview and Summary

The Court of Appeal was asked to review a decision of the Federal Circuit Court, where the original judge had dismissed an action brought by Cherry Red Pty Ltd against Calonsag. Cherry Red sought damages for copyright infringement and passing off. The original case involved Cherry Red's claim that Calonsag had infringed its copyright in the song "I Never Loved a Man" by uploading a cover version of the song to YouTube. Additionally, Cherry Red alleged that Calonsag had passed off her cover as the original work by Cherry Red.

The central legal issues before the Court of Appeal were whether the trial judge had erred in dismissing the action and whether there were any grounds for an appeal or a new trial. Specifically, the Court had to determine if the trial judge had correctly applied the relevant legal principles in dismissing the claims of copyright infringement and passing off. The Court also needed to examine whether any procedural errors had occurred that could warrant a new trial.

In its judgement, the Court of Appeal found that the trial judge had applied the correct legal principles in dismissing the claims. The Court held that Cherry Red had failed to establish a case of copyright infringement as there was no evidence of copying of a substantial part of the song. Additionally, the Court found that the claim of passing off was also dismissed, as Cherry Red had not demonstrated that Calonsag's cover had created a misrepresentation likely to deceive or cause confusion among the public. The Court concluded that there were no grounds for an appeal or a new trial, affirming the decision of the trial judge. The appeal was dismissed with costs.

Orders