GS Technology Pty Ltd v Secretary Copyright Tribunal

[1999] FCA 231

FEDERAL COURT OF AUSTRALIA

GS Technology Pty Ltd v Secretary Copyright Tribunal [1999] FCA 231

PROCEDURE - costs - conduct of parties in litigation.

Copyright Act 1968 (Cth)
Administrative Decisions (Judicial Review) Act 1997 (Cth)

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 cited
General Newspapers v Telstra Corporation (1993) 45 FCR 164 cited
Grundy v Lewis [1998] FCA 563 cited

G S TECHNOLOGY PTY LTD v THE SECRETARY OF THE COPYRIGHT TRIBUNAL AND STATE OF QUEENSLAND
QG210 OF 1997

COOPER J
BRISBANE
16 MARCH 1999

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG210 OF 1997

BETWEEN:

G S TECHNOLOGY PTY LTD
Applicant

AND:

THE SECRETARY OF THE COPYRIGHT TRIBUNAL
First Respondent

STATE OF QUEENSLAND
Second Respondent

JUDGE:

COOPER J

DATE OF ORDER:

16 MARCH 1999

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:

1.The first respondent pay the applicant’s costs of and incidental to determination of the first respondent’s notice of objection to competency of the applicant’s application, including reserved costs, to be taxed if not agreed.

G S TECHNOLOGY PTY LTD v THE SECRETARY OF THE COPYRIGHT TRIBUNAL AND STATE OF QUEENSLAND
QG210 OF 1997

COOPER J
BRISBANE
16 MARCH 1999

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG210 OF 1997

BETWEEN:

G S TECHNOLOGY PTY LTD
Applicant

AND:

THE SECRETARY OF THE COPYRIGHT TRIBUNAL
First Respondent

STATE OF QUEENSLAND
Second Respondent

JUDGE:	COOPER J
DATE:	16 MARCH 1999
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. On 24 December 1997 the applicant sought review of a decision of the first respondent, the Secretary of the Copyright Tribunal, to issue a certificate of taxation in File No CT2 GS Technology Pty Ltd on a reference under s183 of the Copyright Act 1968 (Cth). The relief claimed included an order that the decision to issue the Certificate of Taxation be set aside and that the matter be remitted for reconsideraiton.

2. On 6 February 1998 the first respondent filed a Notice of Objection to Competency.  The notice contained two grounds.  The first was that this Court did not have jurisdiction to hear the application.  The second was that the decision of the first respondent of 2 December 1997 to issue a certificate of taxation is not a decision subject to review under the Administrative Decisions (Judicial Review) Act 1997 (Cth) (“the ADJR Act”).

3. The applicant, by request dated 2 April 1998, sought particulars of the facts and matters relied upon to make out each of the grounds of objection taken by the first respondent.  The first respondent’s reply came in a letter from the Australian Government Solicitor dated 14 April 1998 which said, in part :-

   “It seems to me that your request is not a proper request for particulars but rather an attempt to seek details of my client’s argument in respect of its Notice.  As such, you are not entitled to request same.  Accordingly, I decline to provide those particulars you seek.

   In any event, and in accord with usual practice, my client’s outline of submissions will be provided to you when this matter comes before the court for hearing."

4. The notice of objection came on for hearing on 12 April 1998.

5. The first respondent’s objections were that the decision to execute a certificate for the purposes of s 174(2A) of the Copyright Act 1968 (Cth) was a ministerial act and not an “administrative decision” for the purposes of the ADJR Act as that term is explained by the authorities: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 337; General Newspapers v Telstra Corporation (1993) 45 FCR 164 at 173. There was, it was submitted, no decision which founded jurisdiction.

6. From the applicant’s submissions it was immediately clear that, notwithstanding the relief claimed in the application, the applicant was in fact seeking review of the decision of the first respondent to order costs against the applicant in favour of the State of Queensland and to tax them in the sum of $18,059.70

7. The notice was adjourned to 14 May 1998 and the State of Queensland was joined as a respondent.  On 14 May 1998 the application was amended and the objection to competency dismissed.

8. Had the first respondent communicated the basis of its objection prior to the filing of the notice of objection to competency, I have no doubt that the application would have been amended to identify the substance of the complaint in respect of which review was sought.  I said in Grundy v Lewis [1998] FCA 563 at 16, that although there may be no legal requirement to disclose information when it is sought, the failure to do so, if it has an effect on the conduct of the litigation, may have adverse consequences when the question of costs is to be determined.

9. The notice of objection and the proceedings relating to it were generated by the first respondent.  The costs associated with them should be borne by the first respondent.

10. The applicant seeks indemnity costs from 24 March 1998 in consequence of serving what purports to be an offer to compromise under O 23 of the Federal Court Rules.  The offer was that the notice of objection to competency be dismissed and that the first respondent pay the applicant’s costs of and incidental to the notice.  The notice contains no element of compromise on the part of the applicant.  It requires that the first respondent abandon its objection.  The “offer” was sent before the particulars were sought and at a time when the principal application disclosed no reviewable decision.  I am far from persuaded that the offer made is an offer to compromise within the terms of O 23 r 2.  However, it is unnecessary to finally decide that matter as I am satisfied that the circumstances of this case should not lead to an order for indemnity costs in terms of O 23 r 11.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice .

Associate:

Dated:             16 March 1999

Solicitor for the Applicant:	Andrew P Abaza
Counsel for the First Respondent:	J A Logan
Solicitor for the First Respondent:	Australian Government Solicitor
Date of Hearing:	12 June 1998
Date of Judgment:	16 March 1999