Futuretronics.com.au Pty Ltd v Graphix Labels Pty Ltd (No 3) - [2008] FCA 896

FEDERAL COURT OF AUSTRALIA
Futuretronics.com.au Pty Limited v Graphix Labels Pty Ltd (No 3)
[2008] FCA 896
COSTS – multiple causes of action – successful on only some causes of action – whether separate orders should be made – issues sufficiently separate and distinct – separate orders made – application of one-third off rule in O 62, r 36A Federal Court Rules – copyright litigation appropriately commenced in Federal Court – indemnity costs – conduct of unsuccessful respondent – did not add substantially to length of trial – indemnity costs – whether unsuccessful applicant should have known main claim had no chance of success – costs awarded on party and party basis.
Federal Court Rules O 62 r 36A
Australian Performing Right Association Ltd v Metro on George Pty Ltd (2004) 64 IPR 57 referred to
Australasian Performing Right Association Ltd v Pashalidis [2000] FCA 1815 referred to
Axe Australasia Pty Ltd v Australume Pty Ltd (No 2) [2006] FCA 844 followed
Colgate-Palmolive v Cussons (1993) 46 FCR 225 referred to
Fasold v Roberts (unreported, Sackville J, 11 September 1997 MG942 of 1992 referred to
Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397 followed
Futuretronics.com.au Pty Limited v Graphix Labels Pty Ltd [2007] FCA 1621 referred to
Futuretronics.com.au Pty Limited v Graphix Labels Pty Ltd (No 2) [2008] FCA 746 referred to
LED Builders Pty Ltd v Hope (1994) 53 FCR 10 referred to
FUTURETRONICS.COM.AU PTY LIMITED ACN 006 327 386 v GRAPHIX LABELS PTY LTD ACN 005 771 773 and JOHN ATTA
VID 1237 OF 2006
BESANKO J
12 JUNE 2008
ADELAIDE (BY VIDEOCONFERENCE WITH MELBOURNE)

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 1237 OF 2006

BETWEEN:

FUTURETRONICS.COM.AU PTY LIMITED ACN 006 327 386
Applicant

AND:

GRAPHIX LABELS PTY LTD ACN 005 771 773
First Respondent

JOHN ATTA
Second Respondent

JUDGE:

BESANKO J

DATE OF ORDER:

12 JUNE 2008

WHERE MADE:

ADELAIDE (BY VIDEOCONFERENCE WITH MELBOURNE)

THE COURT ORDERS THAT:
1.Subject to orders 2 and 3 below, the applicant pay the respondents’ costs of the proceeding.
2.The respondents pay the applicant’s costs of the infringement of copyright claim in relation to the artworks and the breach of implied term claim in relation to the artworks and the provisions of O 62 r 36A(1) do not apply in relation to this order.
3.The applicant pay two-thirds of the respondents’ costs of the submissions (including written submissions) as to the appropriate orders as to costs.
4.Pursuant to O 52, r 15(1)(a)(iii) of the Federal Court Rules the time for filing and serving any notice of appeal from the orders made in this proceeding be extended for a period of 21 days from today’s date.

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

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 1237 OF 2006

BETWEEN:

FUTURETRONICS.COM.AU PTY LIMITED ACN 006 327 386
Applicant

AND:

GRAPHIX LABELS PTY LTD ACN 005…

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: [2008] FCA 896
Decision Date: 12 June 2008

CaseChat Overview and Summary

Futuretronics.com.au Pty Ltd, the applicant, brought an action against Graphix Labels Pty Ltd, the respondent, in the Federal Court of Australia. The applicant alleged that the respondent had breached copyright by reproducing artworks created by the applicant and had also breached an implied term of a contract between the parties. The applicant sought an injunction, damages, and an account of profits, as well as costs. The respondent denied the allegations and counterclaimed for breach of contract and unjust enrichment. The court was required to decide the merits of the applicant's claims and counterclaims, as well as the appropriate orders as to costs.

The court found that the respondent had indeed reproduced the applicant's artworks without permission and that this amounted to an infringement of copyright. However, the court found that the respondent had not breached an implied term of the contract. The court also found that the applicant had not established its claim for unjust enrichment. The court considered the provisions of the Federal Court of Australia Rules relating to costs and determined that the applicant should pay the respondent's costs of the proceeding, subject to certain exceptions. The court also ordered that the applicant pay two-thirds of the respondent's costs of the submissions as to the appropriate orders as to costs. Finally, the court extended the time for filing and serving any notice of appeal from the orders made in this proceeding.

The court ordered that the applicant pay the respondent's costs of the proceeding, subject to certain exceptions, and that the applicant pay two-thirds of the respondent's costs of the submissions as to the appropriate orders as to costs. The court also extended the time for filing and serving any notice of appeal from the orders made in this proceeding. The court's decision provides guidance on the appropriate orders as to costs in cases where one party has partially succeeded on its claims and the other party has partially succeeded on its counterclaims.

Orders

Orders of the court

1. Subject to orders 2 and 3 below, the applicant pay the respondents’ costs of the proceeding.

2. The respondents pay the applicant’s costs of the infringement of copyright claim in relation to the artworks and the breach of implied term claim in relation to the artworks and the provisions of O 62 r 36A(1) do not apply in relation to this order.

3. The applicant pay two-thirds of the respondents’ costs of the submissions (including written submissions) as to the appropriate orders as to costs.

4. Pursuant to O 52, r 15(1)(a)(iii) of the Federal Court Rules the time for filing and serving any notice of appeal from the orders made in this proceeding be extended for a period of 21 days from today’s date.

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

BESANKO J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: BESANKO J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 1237 OF 2006

JUDGE:	BESANKO J
DATE OF ORDER:	12 JUNE 2008
WHERE MADE:	ADELAIDE (BY VIDEOCONFERENCE WITH MELBOURNE)

BETWEEN:	FUTURETRONICS.COM.AU PTY LIMITED ACN 006 327 386 Applicant
AND:	GRAPHIX LABELS PTY LTD ACN 005…