Fahey, M. v Stephens Publishing Pty Ltd - [1991] FCA 715

Re: MARYANNE FAHEY, MEDIA ARTS CORPORATION PTY LTD and TREVOR YOUNG
And: STEPHENS PUBLISHING PTY LTD and FILM AND BOOK PUBLISHING PTY LTD
No. V G459 of 1988
FED No. 715
Damages - Federal Court Practices Notes

COURT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Sweeney J.(1)

CATCHWORDS

Damages - Application containing allegations of misrepresentation as to sponsorship or approval - contract to produce a book - whether book as produced was with approval of originator/licencee of character depicted therein - capacity of agent to give approval - interlocutory motion for injunction - interlocutory orders granted upon usual undertaking as to damages - application dismissed - compensation payable to respondents.

Federal Court Practices Notes - "Usual Undertaking as to Damages"

Air Express Ltd v Ansett Transport Industries Corporations) Pty Ltd (1981) 146 CLR 249

Graham v Campbell (1878) 7 Ch D 490

HEARING

MELBOURNE

#DATE 15:11:1991

Counsel for the Applicants: Mr C. Golvan

Solicitors for the Applicants: Slater and Gordon

Counsel for the Respondents: Mr R. Kendall

Solicitors for the Respondents: Stephens Solicitors

ORDER

The applicants pay to the respondents the sum of $201,637.86 plus interest in the total sum of $77,511.22.

The applicants pay the respondents' costs of the application filed by the respondents on 23 April 1990, including all reserved costs.

The amount of $10,000 paid into court on 9 May 1991 be paid out to the respondents' solicitors for the respondents in part satisfaction of the judgment.

The amount of costs payable to the applicants under the order of 13 May 1991 be set off against the amount payable under paragraph 2 of this order.

There be a stay on execution of judgment for 21 days from 15 November 1991 in relation to paragraphs 1, 2 and 4 of these orders.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

By application filed on 23 December 1988 the applicants Maryanne Fahey, Media Arts Corporation Pty Ltd and Trevor Young sought, amongst other relief, injunctions restraining the respondents Stephens Publishing Pty Ltd ("Stephens Publishing") and Film and Book Publishing Pty Ltd ("Film and Book") from distributing or selling the book referred to in paragraph 8 of the Statement of Claim (or any modification thereof containing a drawing or photograph of Kylie Mole or words attributed to her) without the consent of the applicants, and associated relief.

The book referred to in the Statement of Claim was to be called "Kylie Mole's Official School Planner". Kylie Mole was described as "a distinctive character" "created and developed" by Fahey for the series of television programs known as "The Comedy Company".
Media was described as the "exclusive licensee of the right to manufacture and to commission to be manufactured clothing, stationery, food stuffs, toys, household goods and other goods bearing the name and image of Kylie Mole".
Young was said to be "the exclusive sub-licensee of the right to produce or cause to be produced merchandise bearing 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.

Continue reading Fahey, M. v Stephens Publishing Pty Ltd

Details

AGLC: Fahey, M. & Ors v Stephens Publishing Pty Ltd & Anor [1991] FCA 715
Case: [1991] FCA 715
Decision Date: 15 NOVEMBER 1991

CaseChat Overview and Summary

In the matter of Fahey, M. v Stephens Publishing Pty Ltd, the dispute originated from a contract for the production of a book. The applicants, represented by Ms. Fahey, alleged misrepresentation by the respondents, Stephens Publishing Pty Ltd, in relation to the sponsorship or approval of the book's content. The core of the dispute was whether the book produced was approved by the originator or licencee of the character depicted within it, and whether the agent had the requisite capacity to give such approval. The case was heard in the Federal Court of Australia.

The legal issues the court had to decide involved the validity of the contract, the extent of the respondents' liability for any misrepresentation, and the appropriate relief to be granted. Specifically, the court needed to determine if the respondents were liable for the alleged misrepresentation and whether the applicants were entitled to the injunctive relief they sought. Additionally, the court had to consider the compensation payable to the respondents.

In delivering the judgment, the court found that the applicants had failed to prove the allegations of misrepresentation. Consequently, the interlocutory motion for an injunction was dismissed, and the interlocutory orders were granted on the usual undertaking as to damages. The court held that the applicants were liable to compensate the respondents for the costs incurred during the proceedings and the expenses related to the alleged misrepresentation. As a result, the applicants were ordered to pay the respondents a specific sum of money, including interest, and to cover the respondents' costs. The court also directed that a specific amount paid into court be allocated to the respondents, with certain set-offs and a stay on execution of the judgment.

The final orders of the court mandated that the applicants pay the respondents a specified amount plus interest, cover the respondents' costs, and allocate a certain sum from the money paid into court. The court also provided for a set-off of costs and a temporary stay on the execution of the judgment.

Orders

Orders of the court

The applicants pay to the respondents the sum of $201,637.86 plus interest in the total sum of $77,511.22.

The applicants pay the respondents' costs of the application filed by the respondents on 23 April 1990, including all reserved costs.

The amount of $10,000 paid into court on 9 May 1991 be paid out to the respondents' solicitors for the respondents in part satisfaction of the judgment.

The amount of costs payable to the applicants under the order of 13 May 1991 be set off against the amount payable under paragraph 2 of this order.

There be a stay on execution of judgment for 21 days from 15 November 1991 in relation to paragraphs 1, 2 and 4 of these orders.

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

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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