Fairlight.AU Pty Ltd v Peter Vogel Instruments Pty Ltd - [2013] FCA 1280

FEDERAL COURT OF AUSTRALIA
Fairlight.AU Pty Ltd v Peter Vogel Instruments Pty Ltd [2013] FCA 1280

Citation: Fairlight.AU Pty Ltd v Peter Vogel Instruments Pty Ltd [2013] FCA 1280

Parties: FAIRLIGHT.AU PTY LTD (ACN 104 307 888) v PETER VOGEL INSTRUMENTS PTY LTD (ACN 140 173 397) and PETER VOGEL

File number: VID 784 of 2012

Judge: EDMONDS J

Date of judgment: 2 December 2013

Legislation: Copyright Act 2001 (Cth) s 36
Competition and Consumer Act 2010 (Cth) Sch 2: ss 21, 22
Federal Court of Australia Act 1976 (Cth) s 48
Federal Court Rules 2011 r 9.05, Div 15.2, Pt 16
Federal Court Rules 1979 O 6 r 8
Federal Court Practice Notes CM8

Cases cited:
ACCC v Berbatis Holdings Pty Ltd & Ors (No 2) (1999) 96 FCR 491 discussed
ACCC v Simply No-Knead (Franchising) Pty Ltd (2000) 104 FCR 253 cited
Brisbane Slipways Operations Pty Ltd v Pantaloni & Ors (2010) 270 ALR 1 cited
Comcare v John Holland Rail Pty Ltd (2009) 109 ALD 508 discussed
Falcon v Famous Players Film Co [1926] 2 KB 474 (CA) cited
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 12 cited
John Cook & Co Proprietary Ltd & Anor v Commonwealth & Anor (1922) 31 CLR 394 cited
Performing Rights Society Ltd v Ciryl Theatrical Syndicate Ltd [1924] 1 KB 1 cited
University of New South Wales v Moorhouse (1975) 133 CLR 1 cited
Winstone v Wurlitzer Co Ltd [1946] VLR 338 cited

Ricketson S & Creswell C, The Law of Intellectual Property: Copyright, Design & Confidential Information (Law Book Co, 2^nd ed revised, 2002)

Date of hearing: 21 November 2013

Place: Sydney

Division: GENERAL DIVISION

Category: No catchwords

Number of paragraphs: 29

Counsel for the Applicant: Mr A Panna SC

Solicitor for the Applicant: Kalus Kenny Intelex

Solicitor for the First and Second Respondents: Mr PS Vogel appeared in person

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

VID 784 of 2012

BETWEEN:
FAIRLIGHT.AU PTY LTD
Applicant/Cross-Respondent

AND:
PETER VOGEL INSTRUMENTS PTY LTD
First Respondent/Cross-Claimant

PETER VOGEL
Second Respondent

JUDGE:

EDMONDS J

DATE OF ORDER:

2 DECEMBER 2013

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.KFT Investments Pty Ltd (ACN 005 144 945) be joined as a second cross-respondent to the cross-claim filed 20 December 2012 by the first respondent against the applicant.
2.The first respondent be granted leave to amend the cross-claim filed 20 December 2012 by filing an amended cross-claim, in the form of the draft annexed as annexure “PSV223” to the affidavit of the second respondent affirmed 4 October 2013, on or before 11 December 2013.
3.The proceeding be referred to the Registrar for mediation by a mediator nominated by the Registrar, at such times and dates as the Registrar, after consulting with the parties, fixes so that that mediation is completed by 21 February 2014.
4.The mater be listed for further directions on 27 February 2014.

Note:Entry of orders is dealt with in Rule…

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: [2013] FCA 1280
Decision Date

CaseChat Overview and Summary

Fairlight.AU Pty Ltd, the applicant, brought proceedings against Peter Vogel Instruments Pty Ltd, the first respondent, alleging copyright infringement and seeking damages and an account of profits. The first respondent, in turn, filed a cross-claim against Fairlight.AU Pty Ltd, seeking damages for copyright infringement and unconscionable conduct. Peter Vogel, the second respondent, applied for leave to join KFT Investments Pty Ltd as a second cross-respondent and to amend the cross-claim to include additional claims against Fairlight.AU Pty Ltd and KFT Investments Pty Ltd. The applicant opposed the applications.

The primary legal issue was whether the first respondent had standing to bring the applications and, if so, whether the Court should exercise its discretion to allow the joinder and amendment of the cross-claim. The Court held that while the second respondent did not have standing to bring the applications, the Court would proceed as if the applications were brought by the first respondent. Regarding the amendment application, the Court found that the first respondent had a reasonable prospect of success on the new claim of unconscionable conduct and that the amendment would not cause any prejudice to the applicant. The Court also found that joining KFT Investments Pty Ltd as a cross-respondent was necessary to ensure that all issues in dispute could be heard and finally determined.

The Court ordered that KFT Investments Pty Ltd be joined as a second cross-respondent to the cross-claim and that the first respondent be granted leave to amend the cross-claim by filing an amended cross-claim in the form of the draft annexed to the affidavit of the second respondent. The Court also ordered that the proceeding be referred to the Registrar for mediation and listed the matter for further directions.

Orders