Ginos Engineers Pty Ltd v Autodesk Australia Pty Ltd - [2007] FMCA 2156

FEDERAL MAGISTRATES COURT OF AUSTRALIA

GINOS ENGINEERS PTY LTD v AUTODESK AUSTRALIA PTY LTD

[2007] FMCA 2156

COPYRIGHT – Copyright infringement – application brought by infringing party – application dismissed at applicant’s request – costs order in favour of respondent – quantification of costs.

Federal Magistrates Court Rules 2001(Cth) rr.1.03, 1.03(4), 13.10, 21.02, and 21.02(2)(a)
Copyright Act 1968 (Cth)

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Universal Music Australia Pty Ltd v Jun Miyamoto aka DJ Moto [2003] FCA 812
Datadot Technology Ltd v Alpha Microtech Pty Ltd [2003] FCA 1449

Applicant:

GINOS ENGINEERS PTY LTD

Respondent:

AUTODESK AUSTRALIA PTY LTD

File number:

ADG219 OF 2007

Judgment of:

SIMPSON FM

Hearing date:

19 October 2007, 4 and 6 December 2007

Date of last submission:

6 December 2007

Delivered at:

Adelaide

Delivered on:

6 December 2007

REPRESENTATION

Counsel for the Applicant:

Mr P Scragg

Solicitors for the Applicant:

Peter Scragg & Associates

Counsel for the Respondent:

Mr J Hennessy

Solicitors for the Respondent:

Gilbert & Tobin

ORDERS

That the applicant pay the respondent's costs fixed in the sum of $22,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
ADELAIDE

ADG219 of 2007

GINOS ENGINEERS PTY LTD

Applicant

And

AUTODESK AUSTRALIA PTY LTD

Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

(As Corrected)

In this matter the applicant, Ginos Engineers Pty Ltd, is an engineering company having offices in Adelaide. The respondent, Autodesk Australia Pty Ltd, is a company incorporated in Australia and is in the business of marketing and distributing software products, services and support for Autodesk Inc, a company incorporated under the laws of the United States of America. Autodesk Inc is the ultimate holding company of Autodesk Australia Pty Ltd.
These proceedings have been dismissed at the applicant's request. I am asked now to decide the question of costs.
The applicant commenced the proceedings on 6 August 2007. It claimed the following final relief:
a)A declaration as to the liability of the applicant in respect of the applicant's copyright infringement of the respondent's software;
b)Any other orders that this honourable court deems fit, just and equitable;
c)The costs of the application.
The grounds of the application were as follows:
The applicant and the respondent are unable to agree as to the liability that the applicant has as to the respondent on account of the applicant's copyright infringement of the respondent's software in the circumstances deposed to in the affirmation [sic] of its director, Zisis Ginos, made on 4 August 2007.
On 27 August 2007 the respondent filed a response in which it opposed the orders being sought by the applicant and sought the following orders:
a)That pursuant to r.13.10 of the Federal Magistrates Court (“FMC”) Rules 2001 (Cth) the proceedings be stayed or dismissed generally as:
i)firstly, disclosing no reasonable cause of action against the respondent; and
ii)secondly, being an abuse of the process of the court.
b)Order sought was such further order as 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.

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Details

Case: [2007] FMCA 2156
Decision Date

CaseChat Overview and Summary

In Ginos Engineers Pty Ltd v Autodesk Australia Pty Ltd, the Federal Magistrates Court was asked to determine the appropriate costs following the dismissal of a claim for copyright infringement by the applicant, Ginos Engineers Pty Ltd, against the respondent, Autodesk Australia Pty Ltd. The applicant sought a declaration regarding its liability for copyright infringement and other relief, but later requested the proceedings be dismissed at its own behest. The court was tasked with deciding the appropriate allocation of costs between the parties.

The primary legal issue before the court was whether the applicant was entitled to any costs following the dismissal of its claim and whether the respondent was entitled to an order for costs in its favour. The court considered the Federal Magistrates Court Rules 2001 and relevant case law to determine the appropriate approach to awarding costs. The court found that the applicant's claim was misconceived and had no reasonable cause of action, and that the applicant's solicitors should have discontinued the proceedings upon receiving notice of the defects.

In deciding the matter, the court found that the applicant had no entitlement to costs and that the respondent was entitled to an order for costs in its favour. The court relied on the affidavit of a partner from the respondent's legal firm, which detailed the work undertaken and the associated costs. The court adjusted the estimated costs downwards to account for factors such as the work being in progress and the potential for a reduced taxation rate. Ultimately, the court ordered that the applicant pay the respondent's costs in the sum of $22,500.

The court's decision was based on the clear failure of the applicant's claim, the lack of reasonable cause of action, and the unnecessary continuation of the proceedings by the applicant's solicitors. The court emphasised the importance of avoiding undue delay, expense, and technicality, in line with the objects of the Federal Magistrates Court Rules. The order for costs was intended to align with the principles of just, efficient, and economical resolution of proceedings.

Orders