Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd - [2004] FCA 293

FEDERAL COURT OF AUSTRALIA
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd and Anor
[2004] FCA 293
PRACTICE AND PROCEDURE – Federal Court Rules – application to determine separate questions – whether just and convenient to make order with regard to efficient case management – application for security for costs – s 202 of the Copyright Act 1968 (Cth) – proceedings ‘defensive in nature’
Copyright Act 1968 (Cth) s 202
Federal Court Rules, O 28 r 2, O 29 r 1, 2 and 4
Reading Australia Pty Limited v Australia Mutual Provident Society [1999] FCA 718
Griffiths v Northern Territory [2003] FCA 1177
Village Building Co Limited v Canberra International Airport Pty Limited (2003) FCA 1195, Olbers v Commonwealth of Australia (No 3) [2003] FCA 651
Torbey Vander Have Pty Limited v Mass Constructions Pty Limited (2002) 55 IPR 542
Ryde Municipal Council v The Royal Ryde Homes and another (1970) 91 W.N. 440
Eaton & Sons Pty Ltd v Warringah Shire Council (1972) 129 CLR 270
Amalgamated Mining Services Pty Ltd v Warman International Limited (1988) 19 FCR 324 Avel Pty Limited v Multicoin Amusements Pty Ltd (1990) 171 CLR 88
Chippendale Printing Co Pty Ltd v Commonwealth (1995) 17 ACSR 328
CONCRETE PTY LTD v PARRAMATTA DESIGN AND DEVELOPMENTS PTY LTD AND GHASSAN FARES
N 1509 OF 2003
CONTI J
5 MARCH 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 1509 OF 2003

BETWEEN:

CONCRETE PTY LTD
APPLICANT

AND:

PARRAMATTA DESIGN & DEVELOPMENTS PTY LTD
FIRST RESPONDENT

GHASSAN FARES
SECOND RESPONDENT

PARRAMATTA DESIGN & DEVELOPMENTS PTY LTD
CROSS CLAIMANT

CONCRETE PTY LTD
CROSS RESPONDENT

JUDGE:

CONTI J

DATE OF ORDER:

5 MARCH 2004

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.The application the subject of notice of motion filed on 24 February 2004 be dismissed.

2.The first respondent/cross-claimant and the second respondent pay the applicant’s costs of the motion.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 1509 OF 2003

BETWEEN:

CONCRETE PTY LTD
APPLICANT

AND:

PARRAMATTA DESIGN & DEVELOPMENTS PTY LTD
FIRST RESPONDENT

GHASSAN FARES
SECOND RESPONDENT

PARRAMATTA DESIGN & DEVELOPMENTS PTY LTD
CROSS CLAIMANT

CONCRETE PTY LTD
CROSS RESPONDENT

JUDGE:

CONTI J

DATE:

5 MARCH 2004

PLACE:

SYDNEY

REASONS FOR JUDGMENT
Introduction

Pursuant to notice of motion filed on 24 February 2004, the respondents/cross-claimant have moved for an order under Order 29 Rule 2 of the Federal Court Rules that certain separate questions be determined in advance of the final hearing of the proceedings commencing on 1 April 2004, and in addition an order for security for costs. In the circumstances, it was an unusual step to take, and it is necessary that I provide some detail as to the background to the application. On 5 March 2004 I dismissed the motion and indicated that I would give reasons for my decision at a later date. The…

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: [2004] FCA 293
Decision Date: 5 MARCH 2004

CaseChat Overview and Summary

Concrete Pty Ltd, the plaintiff, initiated proceedings against Parramatta Design and Developments Pty Ltd, the defendant, regarding the ownership and transfer of certain architectural plans and copyrights associated with a property. The plaintiff argued that it had acquired rights to the plans and copyrights through its purchase of the property, whereas the defendant claimed ownership and sought to enforce its copyright. The dispute was heard in the Federal Court of Australia, which had to determine the validity of the claims made by both parties.

The legal issues before the court were primarily whether the plaintiff had acquired the architectural plans and copyrights through its purchase of the property and whether the defendant's claims were valid. The court had to consider the principles set forth in Royal Ryde Homes and Eaton to ascertain if they applied under the current town planning legislation. Additionally, the court needed to determine if the plans and copyrights were sufficiently similar to those approved in prior town planning and building applications. Another issue was the application for security for costs by the defendant, which the court had to assess under section 56 of the Federal Court of Australia Act 1976.

The court concluded that the arguments presented by the parties did not intersect, making it arguable that the plaintiff had acquired an interest in the copyright upon purchasing the property. The court noted that resolving this issue at that point might lead to delays through appeals, and given the urgency of the case, particularly due to the plaintiff's significant financial outlay, the issue should be left for final resolution. Regarding the security for costs application, the court found that it did not warrant the granting of the order as requested by the defendant. Therefore, the court dismissed the application for security for costs.

The court made orders dismissing the defendant's application for security for costs and directing the first and second respondents to pay the plaintiff's costs associated with the motion.

Orders

Orders of the court

1. The application the subject of notice of motion filed on 24 February 2004 be dismissed.

2. The first respondent/cross-claimant and the second respondent pay the applicant’s costs of the motion.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

CONTI J

If the principles enunciated in Royal Ryde Homes and Eaton still operate in the present town planning legislation, it is not easy to envisage how the respondents/cross-claimant can succeed in principle in obtaining the relief sought in their notice of motion. Plainly further research is required by counsel for the parties in that regard. Presumably the plans etc the subject of the present copyright claims were the subject of the town planning and/or building approvals obtained by Concrete or its predecessors in title.Conclusion to the issue of separate questions As can be clearly seen from the above, the primary arguments of the respective parties do not intersect. I am therefore of the opinion, without presently determining the copyright issue propounded by the respondents/cross-claimant, that given that the development/building plans for which copyright is claimed by the respondents/cross-claimant relevantly or sufficiently resemble those the subject of a prior development or building approval in relation to the subject realty, it is at least reasonably arguable that Concrete acquired an interest relevantly in that copyright upon its purchase of the freehold title to the subject property. That issue should be left for final resolution at the hearing of the proceedings shortly to take place. Furthermore I bear in mind the observations in Griffiths that the resolution of that question at the present point in time may lead to a real possibility of delay through appeals to higher courts. The need for final resolution of the present proceedings in all of its aspects is necessary, at least for the reason that Concrete is said to be currently paying mortgage interest in excess of $4,000 per week on the purchase price outlaid for this development site. The respondents/cross-claimant have additionally brought an application for security for costs as follows:‘6.Without limiting the rights of the parties to make further applications for security for costs, an order in accordance with Order 28 Rule 2, that:(a)the applicant provide security for costs in the sum of $57,035 should these proceedings be listed for 2 hearing days, and a further $8,000 for every additional hearing day that these proceedings are listed.(b)the security for costs be paid by the applicant into the trust account of their solicitor, Costa & Associates, within 7 days.(c)the applicant’s solicitor will inform the Respondents’ solicitor upon receipt of the security amount.(d)these proceedings be stayed in the event that the applicant is in default of this order.(e)the proceedings commenced by the applicant be dismissed and that judgement be entered for the Respondents and Cross-Clamant on their Defence and Cross-Claim.’ Section 56 of the Federal Court of Australia Act 1976 (Cth) confers a discretionary jurisdiction on the Court to make orders for security for costs. Section 56(1) and (2) provide as follows:‘1.The Court or a Judge may order an applicant in a proceeding in the Court or an appellant in an appeal to the Court to give security for the payment of costs that may be awarded against him or her.2.The security shall be of such amount, and given at such time and in such manner and form, as the Court of Judge directs.

Ratio Decidendi

Legal Principle Established

Established by: CONTI J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1509 OF 2003

BETWEEN:	CONCRETE PTY LTD APPLICANT
AND:	PARRAMATTA DESIGN & DEVELOPMENTS PTY LTD FIRST RESPONDENT GHASSAN FARES SECOND RESPONDENT PARRAMATTA DESIGN & DEVELOPMENTS PTY LTD CROSS CLAIMANT CONCRETE PTY LTD CROSS RESPONDENT
JUDGE:	CONTI J
DATE OF ORDER:	5 MARCH 2004
WHERE MADE:	SYDNEY

JUDGE:	CONTI J
DATE:	5 MARCH 2004
PLACE:	SYDNEY