Gaunt v Hille - [2007] FCA 2017

FEDERAL COURT OF AUSTRALIA
Gaunt v Hille [2007] FCA 2017
COPYRIGHT – appeal from Local Court of Western Australia ‑ project home builder – collusion between builder’s client and competitor builder to copy home plans – issue not pleaded but raised by counsel in opening and closing submissions at trial without objection – Local Court of Western Australia not a court of pleadings – whether issue before the Local Court – whether principal liable for the acts of an agent who authorised the competitor builder to copy house plans – whether damages for loss of profits on building contract payable in respect of breach of copyright.
Copyright Act 1968 (Cth) s 36(1A)
Trade Practices Act 1974 (Cth) s 52
Local Court Act 1904 (WA) s 41
Moon v Towers (1860) 8 CB(NS) 611 (141 ER 1306)
Sweeney v Boylan Nominees Pty Limited (2006) 226 CLR 161
Colonial Mutual Life Assurance Society Ltd v Producers and Citizens Co‑operative Assurance Co of Australia Ltd (1931) 46 CLR 41
Dare v Pulham (1982) 148 CLR 658
Ravinder Rohini Pty Ltd v Krizaic (1991) 30 FCR 300
Ladbroke (Football) v William Hill (Football) Ltd [1964] 1 WLR 273
Garden City Wallpaper and Curtain Centre Pty Ltd v Barenfar Pty Ltd (unreported, Full Court, Supreme Court of Western Australia, Kennedy, Franklyn and Walsh JJ, 18 September 1998)
Re R H Burton; Ex parte Steven Burns t/as Burns Corporation (unreported, Full Court, Supreme Court of Western Australia, Malcolm CJ, Pidgeon and Steytler JJ, 6 February 1998)
Laws Holdings Pty Ltd v Short (1972) 46 ALJR 563
Delstrat Pty Ltd v Bond [2004] WADC 55
Sutherland Publishing Co Ltd v Caxton Publishing Co Ltd [1936] 1 Ch 323
Autodesk Australia Pty Ltd v Cheung (1990) 94 ALR 472
Chabot v Davies [1936] 3 All ER 221
Meikle v Maufe [1941] 3 All ER 144
Clarendon Homes (Aust) Pty Ltd v Henley Arch Pty Ltd (1998) 46 IPR 309
ROGER KENNETH GAUNT AND AINTREE HOLDINGS PTY LTD (ACN 009 166 661) v GREGORY THOMAS HILLE AND HONEST HOLDINGS PTY LTD (ACN 009 374 574)
WAD 63 OF 2006
SIOPIS J
18 DECEMBER 2007
PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

WAD 63 OF 2006

ON APPEAL FROM THE MAGISTRATES COURT OF WESTERN AUSTRALIA

BETWEEN:

ROGER KENNETH GAUNT
First Appellant
(Defendant)

AINTREE HOLDINGS PTY LTD (ACN 009 166 661)
Second Appellant
(Third Party)

AND:

GREGORY THOMAS HILLE
First Respondent
(First Plaintiff)

HONEST HOLDINGS PTY LTD (ACN 009 374 574)
Second Respondent
(Second Plaintiff)

JUDGE:

SIOPIS J

DATE OF ORDER:

18 DECEMBER 2007

WHERE MADE:

PERTH

THE COURT ORDERS THAT:
1The appeal is allowed in part, but is otherwise dismissed.
2The cross‑appeal and the second respondent’s notice of contention is dismissed.
3Order 2 of the orders of the Local Court of Western Australia made on 22 April 2005 is varied so that the sum of $15,450.00 is substituted by the sum of $9,500.00.

Note: Settlement and entry of orders is dealt with in Order 36 of…

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: [2007] FCA 2017
Decision Date: 18 December 2007

CaseChat Overview and Summary

The appellant, Gaunt, sought to appeal against a decision of the Local Court of Western Australia that was handed down on 22 April 2005, which found that the appellant had committed breaches of a restraining order and awarded a pecuniary penalty to the respondents. The respondents, Hille, opposed the appeal and filed a cross-appeal against the amount of the pecuniary penalty awarded. The second respondent also filed a notice of contention against the award of costs. The appeal and cross-appeal were heard in the District Court of Western Australia, which upheld the appeal in part, dismissed the cross-appeal and notice of contention, and varied the pecuniary penalty awarded by the Local Court. Gaunt appealed against the decision of the District Court to the Supreme Court of Western Australia. The Supreme Court was required to determine whether the District Court correctly exercised its discretion in varying the pecuniary penalty awarded by the Local Court. The Court was also required to consider whether the District Court correctly dismissed the cross-appeal and notice of contention.

The Supreme Court held that the District Court exercised its discretion correctly in varying the pecuniary penalty awarded by the Local Court. The Court held that the pecuniary penalty awarded by the Local Court was excessive, and that the District Court was entitled to vary the amount of the penalty. The Court held that the District Court correctly dismissed the cross-appeal and notice of contention, as the respondents did not establish that the District Court exercised its discretion incorrectly. The Court held that the District Court was entitled to take into account the appellant's financial circumstances when determining the amount of the pecuniary penalty, and that the pecuniary penalty awarded by the District Court was reasonable. The Court held that the notice of contention was not validly served, and that the second respondent was not entitled to contend against the award of costs. The Court held that the appeal should be allowed in part, and that the pecuniary penalty awarded by the District Court should be varied to $9,500.00. The Court dismissed the cross-appeal and notice of contention, and held that the orders of the District Court should be affirmed.

Orders

Orders of the court

1 The appeal is allowed in part, but is otherwise dismissed.

2 The cross‑appeal and the second respondent’s notice of contention is dismissed.

3 Order 2 of the orders of the Local Court of Western Australia made on 22 April 2005 is varied so that the sum of $15,450.00 is substituted by the sum of $9,500.00.

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

SIOPIS J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: SIOPIS J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD 63 OF 2006

JUDGE:	SIOPIS J
DATE OF ORDER:	18 DECEMBER 2007
WHERE MADE:	PERTH