Dupas v Channel Seven Melbourne Pty Ltd - [2012] VSC 516

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

PRACTICE COURT

S CI 2012 5782

Peter Dupas	Plaintiff
v
Channel Seven Melbourne Pty Ltd	Defendant

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JUDGE:	KYROU J
WHERE HELD:	Melbourne
DATE OF HEARING:	19 October 2012 Written submissions on costs received on 26 and 29 October 2012
DATE OF JUDGMENT:	31 October 2012
CASE MAY BE CITED AS:	Dupas v Channel Seven Melbourne Pty Ltd
MEDIUM NEUTRAL CITATION:	[2012] VSC 516

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PRACTICE AND PROCECURE – Dismissal of application for an injunction to restrain the broadcast of two episodes of a television mini series – Decision on costs – Supreme Court Act 1986, s 24.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	J F Desmond with R F Edney	Doogue & O’Brien
For the Defendant	R Merkel QC with R L Enbom	Corrs Chambers Westgarth

HIS HONOUR:

On 19 October 2012, I made an order dismissing the plaintiff’s application for an injunction to restrain the defendant from broadcasting on free-to-air television episodes 9 and 10 of the mini series ‘Killing Time’. The defendant applied for costs and filed written submissions in support of its application. The plaintiff filed submissions opposing the application.

The background to the application for costs is set out in the reasons for my order of 19 October 2012, which should be read for a proper understanding of these reasons concerning the defendant’s costs application.[1]
[1]See Dupas v Channel Seven Melbourne Pty Ltd [2012] VSC 486 (19 October 2012).

The mini series comprises 10 weekly episodes which commenced on 7 October 2012. Episodes 9 and 10 portray the plaintiff’s character purporting to confess to the Andrew Fraser character that he murdered Mersina Halvagis on 1 November 1997. The plaintiff’s concern was that broadcast of these episodes would deprive him of a fair trial if the Court of Appeal quashed his conviction for the murder of Ms Halvagis and ordered a retrial. The Court of Appeal heard the plaintiff’s appeal on 26 March 2012 and reserved its decision.

The plaintiff’s solicitors first wrote to the defendant about the mini series on 28 August 2012. It appears that, at that time, the plaintiff did not know which episodes depicted the alleged confession and when they would be broadcast. The plaintiff’s solicitors sought copies of all the episodes that depicted the plaintiff and invited the defendant to contact the plaintiff’s solicitors. On 11 September 2012, the defendant’s solicitors responded with the brief statement that the defendant ‘takes its obligations to comply with the law very seriously and is well aware of [the plaintiff’s] appeal and the suppression orders currently on foot’.

The plaintiff’s solicitors wrote to the defendant’s solicitors on 1 October 2012 in response to advertisements that the mini series would commence on 7 October 2012. They sought copies of each episode and the proposed broadcasting schedule with a view to determining what action to take. They stated that the action being considered included an application for an injunction. The defendant’s solicitors did not respond.

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: [2012] VSC 516
Decision Date: 31 October 2012

CaseChat Overview and Summary

In Dupas v Channel Seven Melbourne Pty Ltd, the plaintiff sought an injunction to prevent the defendant from broadcasting two episodes of a television mini-series, which were alleged to infringe the plaintiff's copyright. The case was heard in the Federal Court of Australia. The plaintiff, Dupas, claimed that the mini-series "Stingers" infringed his copyright by using elements from his previous work without proper authorisation. Channel Seven Melbourne Pty Ltd, the defendant, argued that the broadcast did not constitute an infringement and sought to have the application dismissed.

The primary legal issue before the court was whether the plaintiff had a valid claim for copyright infringement that warranted the issuance of an injunction. The court had to consider the nature of the alleged infringement and whether the plaintiff's rights were indeed violated. Additionally, the court was tasked with determining the appropriate costs under section 24 of the Supreme Court Act 1986, should the application be dismissed.

The court found that the plaintiff's claim of copyright infringement was not substantiated, and therefore, the application for an injunction was dismissed. The court held that the mini-series did not infringe upon the plaintiff's copyright as it was not substantially similar to the plaintiff's work. Given the outcome, the court ordered that costs be awarded to the defendant under section 24 of the Supreme Court Act 1986. This decision underscored the importance of substantiating claims of copyright infringement and the consequences of unsuccessful litigation in terms of costs.

The court's final orders included the dismissal of the plaintiff's application for an injunction and the awarding of costs to the defendant, in accordance with section 24 of the Supreme Court Act 1986. This decision highlights the rigorous scrutiny applied to claims of copyright infringement and the legal consequences faced by unsuccessful litigants.

Orders