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Hanisch v Strive Pty Ltd

Hanisch v Strive Pty Ltd

Case [1997] FCA 303 24 April 1997

Civil Litigation & Procedure

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CATCHWORDS

PRACTICE AND PROCEDURE - costs - limitation of costs - application for order under O 62A the Federal Court Rules - where action for alleged copyright infringement ought to have been brought in District Court - whether costs limitation order should apply equally to both parties.

Commonwealth Constitution - ss 76, 77

Copyright Act 1968 (Cth) - ss 115, 116, 203
District Courts Act 1966 (Qld) - ss 68, 69
Judiciary Act 1903 (Cth) - s 39
District Court Rules - Schedule 2
Federal Court Rules - O 62A
Queensland Supreme Court Rules - O 67

Cases Referred To

Maunchest Pty Ltd v Bickford (Drummond J, 7 July 1993, unreported)
Sacks v Permanent Trustee Australia Ltd (1993) 45 FCR 509
Startune Pty Ltd v Ultratune Systems (Aust) Pty Ltd [1991] 1 Qd R 192
Woodlandsv Permanent Trustee Co Ltd (1995) 58 FCR 139

GRAEME ARTHUR HANISCH v STRIVE PTY LTD & ORS
QG 163 OF 1996

DRUMMOND J
BRISBANE
24 APRIL 1997

IN THE FEDERAL COURT OF AUSTRALIA  No QG 163 of 1996
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION

BETWEEN:GRAEME ARTHUR HANISCH

Applicant

AND:STRIVE PTY LTD

(ACN 010 914 440)

First Respondent

AND:DAVID GREGORY McLEAN
Second Respondent

AND:RICHARD JOHN McLEAN

Third Respondent

AND:PETER BAINES
Fourth Respondent

MINUTES OF ORDERS

CORAM:  Drummond J
DATE:  24 April 1997
PLACE:  Brisbane

THE COURT ORDERS THAT:

The maximum costs that may be recovered on a party and party basis by either the applicant or the respondents shall be:
(a)those which would have been recoverable by that party, pursuant to items 1 to 101 and item 105 of the scale of fees and costs in Schedule 2 to the District Court Rules, if this action had been commenced in the District Court; and
(b)the filing and other fees paid by that party pursuant to the Federal Court Regulations; and
(c)the costs of and incidental to the hearing on 23 April 1997 assessed in accordance with the Federal Court scale of fees and costs.

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

IN THE FEDERAL COURT OF AUSTRALIA  No QG 163 of 1996
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION

BETWEEN:GRAEME ARTHUR HANISCH

Applicant

AND:STRIVE PTY LTD

(ACN 010 914 440)

First Respondent

AND:DAVID GREGORY McLEAN
Second Respondent

AND:RICHARD JOHN McLEAN

Third Respondent

AND:PETER BAINES
Fourth Respondent

CORAM:Drummond J
DATE:24 April 1997
PLACE:Brisbane

REASONS FOR JUDGMENT

When this matter came before me on a directions hearing on 4 April, I raised with the parties the question whether the case was one in which a costs budget order should be made under O 62A the Federal Court Rules. Order 62A r 1 empowers the Court to make a costs budget order on its own motion. I gave directions requiring each party to file material, to include its proposal as to the maximum costs figure that should be set, if such an order were made. I also required the applicant to provide “the best evidence he can provide on…

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 Hanisch v Strive Pty Ltd

Details

AGLC: Hanisch v Strive Pty Ltd [1997] FCA 303
Case: [1997] FCA 303
Decision Date: 24 APRIL 1997

CaseChat Overview and Summary

Graeme Arthur Hanisch initiated proceedings in the Federal Court against Strive Pty Ltd and others, alleging copyright infringement concerning a Workplace, Health and Safety Officers' Training Manual. Hanisch claimed that Strive Pty Ltd had copied and distributed his copyrighted work to approximately 75 trainees during a Department of Employment, Education and Training training course in November 1995. The respondents admitted producing training manuals similar to Hanisch's but denied infringement, asserting an agreement with Hanisch to jointly produce and own the manuals. The case raised questions about the appropriate forum for the action, the potential monetary compensation, and the application of costs limitation under O 62A of the Federal Court Rules.

The court needed to determine whether the action should have been brought in the District Court due to the monetary limit on its jurisdiction and whether an order limiting costs should apply equally to both parties. It also had to assess the maximum amount of costs recoverable by the parties if the case had been in the District Court and whether the order under O 62A should fix a specific dollar amount.

Justice Drummond concluded that the case should have been brought in the District Court due to its wide civil jurisdiction up to $200,000 and the District Court's power to grant the relief sought, including an account of profits. The court ruled that O 62A empowers it to limit the maximum costs recoverable on a party and party basis equally for both parties, rejecting the argument that it could limit costs for one party only. The order fixed the maximum recoverable costs based on the District Court's scale of fees and costs, including the fees paid under the Federal Court Regulations. The court emphasised that such an order, while potentially resulting in different recoverable amounts for the parties, operates equally by limiting costs to those recoverable under the District Court scale.

The court made an order that the maximum costs recoverable on a party and party basis by either Hanisch or the respondents would be those recoverable in the District Court under the specified scale, adjusted for the Federal Court filing fees. This decision ensured the application of O 62A in a manner that treated both parties equally while limiting the overall costs incurred in the litigation.

Orders