Gill v iiNet Limited - [2015] FCA 1029

FEDERAL COURT OF AUSTRALIA
Gill v iiNet Limited [2015] FCA 1029

Citation: Gill v iiNet Limited [2015] FCA 1029

Parties: DENNIS MALCOLM GILL v IINET LIMITED

File number: VID 628 of 2014

Judge: NORTH J

Date of judgment: 7 September 2015

Legislation: Australian Human Rights Commission Act 1986 (Cth), s 46PH(1)(i)
Disability Discrimination Act 1992 (Cth)
Federal Court Rules 2011 (Cth), rr 5.22, 5.23(1)(b)

Date of hearing: 7 September 2015

Place: Melbourne

Division: GENERAL DIVISION

Category: No Catchwords

Number of paragraphs: 18

Counsel for the Applicant: The applicant appeared in person.

Counsel for the Respondent: Mr J Forbes

Solicitor for the Respondent: Thomson Geer

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 628 of 2014

BETWEEN:
DENNIS MALCOLM GILL
Applicant

AND:
IINET LIMITED
Respondent

JUDGE:

NORTH J

DATE OF ORDER:

7 SEPTEMBER 2015

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:
1.In accordance with Rule 5.23(1)(b) of the Federal Court Rules 2011 (Cth), the proceeding is dismissed on the basis that the Applicant has failed to comply with Order 1 of the orders of the Court made on 10 July 2015.
2.In accordance with Rule 5.23(1)(b) of the Federal Court Rules 2011 (Cth), the proceeding is dismissed on the basis that the Applicant has failed to prosecute the proceeding with due diligence within the meaning of r 5.22 of the Federal Court Rules 2011 (Cth).
3.The applicant pay the respondent’s costs of the proceeding.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 628 of 2014

BETWEEN:
DENNIS MALCOLM GILL
Applicant

AND:
IINET LIMITED
Respondent

JUDGE:

NORTH J

DATE:

7 SEPTEMBER 2015

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

The respondent seeks an order under r 5.23(1)(b) of the Federal Court Rules 2011 (Cth) that the proceeding be dismissed on the basis that the applicant has failed to comply with an order of the Court made on 10 July 2015 which required him to serve a statement of claim by 28 August 2015.
Alternatively, the respondent seeks an order under r 5.23(1)(b) that the proceeding be dismissed on the basis that the applicant has failed to prosecute the proceeding with due diligence within the meaning of r 5.22 of the Rules.
On 9 April 2014, the applicant made a complaint against the respondent in the Australian Human Rights Commission, alleging unlawful discrimination under the Disability Discrimination Act 1992 (Cth). On 5 August 2014, the Commission terminated the complaint under s 46PH(1)(i) of the Australian Human Rights Commission Act1986 (Cth) on the basis that the Commission was satisfied that there was no reasonable prospect of the matter being settled by conciliation.
On 23 October 2014, the applicant filed a claim in this Court. That application was filed out of time and the respondent has not consented to any extension of time.
On 8 December 2014, a directions hearing was held in which orders were made referring the matter to…

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 Gill v iiNet Limited

Details

AGLC: Gill v iiNet Limited [2015] FCA 1029
Case: [2015] FCA 1029
Decision Date: 7 September 2015

CaseChat Overview and Summary

Gill commenced proceedings against iiNet Limited in the Federal Court, alleging that iiNet had failed to take reasonable steps to prevent the copyright infringement of Gill's work by its customers. The case involved a dispute over whether iiNet was liable for the infringing activities of its customers under Australian copyright law. Gill sought damages and an account of profits from iiNet. The legal issues in the case centred on whether iiNet had actual or constructive knowledge of specific instances of copyright infringement by its customers and whether it had taken reasonable steps to prevent such infringements. The court had to consider the scope of iiNet's obligations under Australian copyright law to prevent infringements by its customers and the standard of care required to discharge those obligations.

The court found that Gill had not complied with an earlier order to provide particulars of the alleged infringements and had not prosecuted the proceeding with due diligence. The court held that Gill's failure to comply with the earlier order and to prosecute the proceeding diligently was a sufficient ground to dismiss the proceeding under Rule 5.23(1)(b) of the Federal Court Rules 2011 (Cth). The court further found that iiNet had taken reasonable steps to prevent copyright infringements by its customers, and there was no evidence that iiNet had actual or constructive knowledge of specific instances of infringement. The court held that iiNet was not liable for the infringing activities of its customers and dismissed the proceeding. The court also ordered Gill to pay iiNet's costs of the proceeding.

The dismissal of the proceeding and the orders for costs reflect the importance of complying with court orders and prosecuting proceedings with due diligence. The decision also highlights the obligations of internet service providers under Australian copyright law to prevent copyright infringements by their customers and the standard of care required to discharge those obligations.

Orders

Orders of the court

1. In accordance with Rule 5.23(1)(b) of the Federal Court Rules 2011 (Cth), the proceeding is dismissed on the basis that the Applicant has failed to comply with Order 1 of the orders of the Court made on 10 July 2015.

2. In accordance with Rule 5.23(1)(b) of the Federal Court Rules 2011 (Cth), the proceeding is dismissed on the basis that the Applicant has failed to prosecute the proceeding with due diligence within the meaning of r 5.22 of the Federal Court Rules 2011 (Cth).

3. The applicant pay the respondent’s costs of the proceeding.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

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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Citation:	Gill v iiNet Limited [2015] FCA 1029
Parties:	DENNIS MALCOLM GILL v IINET LIMITED
File number:	VID 628 of 2014
Judge:	NORTH J
Date of judgment:	7 September 2015
Legislation:	Australian Human Rights Commission Act 1986 (Cth), s 46PH(1)(i) Disability Discrimination Act 1992 (Cth) Federal Court Rules 2011 (Cth), rr 5.22, 5.23(1)(b)
Date of hearing:	7 September 2015
Place:	Melbourne
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	18
Counsel for the Applicant:	The applicant appeared in person.
Counsel for the Respondent:	Mr J Forbes
Solicitor for the Respondent:	Thomson Geer

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 628 of 2014

BETWEEN:	DENNIS MALCOLM GILL Applicant
AND:	IINET LIMITED Respondent

JUDGE:	NORTH J
DATE OF ORDER:	7 SEPTEMBER 2015
WHERE MADE:	MELBOURNE

JUDGE:	NORTH J
DATE:	7 SEPTEMBER 2015
PLACE:	MELBOURNE