Cooper v Universal Music Australia Pty Ltd

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FEDERAL COURT OF AUSTRALIA

Cooper v Universal Music Australia Pty Ltd [2006] FCA 642

COSTS – application for security for costs – jurisdiction of single Judge to make orders for security for costs of an appeal – factors to be considered in deciding whether order for security for costs should be made – whether evidence regarding one application for security for costs may be used as evidence in another related appeal

Held: single Judge has jurisdiction to made orders for security for costs of an appeal; evidence in the affidavit of Mr Michael Williams may be used in relation to both appeals; security for costs apportioned between appellant in NSD 61 of 2006 and first appellant in NSD 150 of 2006

Federal Court of Australia Act 1976 (Cth) s 56
Federal Court Rules O 52 r 20

Croker v Deputy Registrar of the High Court of Australia [2003] FCA 681 applied
Dranichnikov v Centrelink [2002] FCA 1622 applied
Endormer Pty Ltd (in liquidation) v Australian Guarantee Corporation Ltd [2001] FCA 510 distinguished
Keating v Morris & Ors (Moynihan J, Supreme Court of Queensland, 1 September 2005 unreported) applied
Cowell v Taylor (1885) 31 Ch D 34 referred to
Equity Access v Westpac Banking Corp (1989) ATPR 40-972 applied
KP Cable Investments Pty Ltd v Meltglow Pty Ltd (1995) 56 FCR 189 cited
Paton v Campbell Ltd [1993] FCA 449 cited
Carey-Hazell v Getz Bros (Aust) Pty Ltd [2004] FCA 1334 cited

STEPHEN COOPER v UNIVERSAL MUSIC AUSTRALIA PTY LTD (ACN 000 158 592) AND ORS

NSD 61 OF 2006

E-TALK COMMUNICATIONS PTY LTD AND LIAM FRANCIS BAL v UNIVERSAL MUSIC AUSTRALIA PTY LTD (ACN 000 158 592) AND ORS

NSD 150 OF 2006

TAMBERLIN J
SYDNEY
29 MAY 2006


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 61 OF 2006

BETWEEN:

STEPHEN COOPER
APPELLANT

AND:

UNIVERSAL MUSIC AUSTRALIA PTY LTD AND ORS
FIRST TO THIRTY FOURTH RESPONDENTS

JUDGE:

TAMBERLIN J

DATE OF ORDER:

29 MAY 2006

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The evidence in the affidavit of Mr Michael Williams sworn on 22 March 2006 may be used in relation to the applications for security for costs in both NSD 61 of 2006 and NSD 150 of 2006.

2.The appellant provide security for the first to thirty fourth respondents’ costs of the appeal in an amount of $30,000.00 and in such form as may be agreed between the parties or, failing such agreement, in a form acceptable to the Registrar of the Court.

3.The appeal be stayed until such security has been provided or until further order.

4.The appellant pay the first to thirty fourth respondents’ costs of, and associated with, the application for security for costs against him.

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

NSD 150 OF 2006

BETWEEN:

E-TALK COMMUNICATIONS PTY LTD
FIRST APPELLANT

LIAM FRANCIS BAL
SECOND APPELLANT

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Details
Case
[2006] FCA 642
Decision Date

CaseChat Overview and Summary

The case before the court involves the appellants, E-Talk and Liam Francis Bal, contesting the orders made by the primary judge in the Federal Court regarding security for costs in relation to their appeal. The respondents, a group of music copyright holders, sought security for costs to protect against potential financial loss if the appeal were to be dismissed. The legal issues at hand centred on the appropriateness and quantum of the security for costs ordered by the primary judge, as well as the admissibility of certain evidence in the affidavit of Mr Michael Williams. The court had to determine whether the primary judge's orders were correct and whether the evidence in question should be considered.

The court's reasoning involved a detailed examination of the principles governing security for costs and the specific circumstances of the case. The court found that the primary judge had erred in excluding certain evidence from Mr Michael Williams' affidavit, which contained relevant information about the financial capacity of the appellants. Consequently, the court allowed the use of this evidence in the security for costs applications. Regarding the quantum of security for costs, the court deemed the amount ordered by the primary judge excessive, reducing it to $20,000.00 for the first appellant and dismissing the application against the second appellant. The court also addressed the stay of the appeal and the associated costs, confirming that the appeal should be stayed until the required security was provided and setting out the costs to be borne by the parties.

The final orders of the court included allowing the use of Mr Michael Williams' affidavit in the security for costs applications, reducing the amount of security for costs for the first appellant to $20,000.00, dismissing the application for security for costs against the second appellant, and ordering that the appeal be stayed until the security was provided. Additionally, the court ordered that the first appellant pay the respondents' costs associated with the security for costs application, and that the respondents pay the second appellant's costs of the same application. This decision highlights the careful balance the court must strike between protecting the financial interests of copyright holders and ensuring fair treatment of appellants.

Orders

Orders of the court

1. The evidence in the affidavit of Mr Michael Williams sworn on 22 March 2006 may be used in relation to the applications for security for costs in both NSD 61 of 2006 and NSD 150 of 2006.

2. The appellant provide security for the first to thirty fourth respondents’ costs of the appeal in an amount of $30,000.00 and in such form as may be agreed between the parties or, failing such agreement, in a form acceptable to the Registrar of the Court.

3. The appeal be stayed until such security has been provided or until further order.

4. The appellant pay the first to thirty fourth respondents’ costs of, and associated with, the application for security for costs against him.

1. The evidence in the affidavit of Mr Michael Williams sworn on 22 March 2006 may be used in relation to the applications for security for costs in both NSD 61 of 2006 and NSD 150 of 2006.

2. The first appellant (E-Talk) provide security for the first to thirty fourth respondents’ costs of the appeal in an amount of $20,000.00 and in such form as may be agreed between the parties or, failing such agreement, in a form acceptable to the Registrar of the Court.

3. The appeal be stayed until such security has been provided or until further order.

4. The first appellant pay the first to thirty fourth respondents’ costs of, and associated with, the application for security for costs.

5. The application for security for costs against the second appellant (Liam Francis Bal) be dismissed.

6. The first to thirty fourth respondents pay the second appellant’s costs of, and associated with, the application for security for costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

TAMBERLIN J

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Ratio Decidendi

Legal Principle Established

Established by: TAMBERLIN J

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