Hardingham v RP Data Pty Limited (No 2)

FEDERAL COURT OF AUSTRALIA

Hardingham v RP Data Pty Limited (No 2) [2019] FCA 2138

File number:

NSD 1266 of 2018

Judge:

THAWLEY J

Date of judgment:

17 December 2019

Legislation:

Federal Court Rules 2011 (Cth) rr 40.02(b), 40.02(c)

Cases cited:

Gladstone Park Shopping Centre Pty Ltd v Wills (1984) 6 FCR 496

Hardingham v RP Data Pty Limited [2019] FCA 2075

Date of hearing:

17 December 2019

Registry:

New South Wales

Division:

General Division

National Practice Area:

Intellectual Property

Sub-area:

Copyright and Industrial Designs

Category:

No Catchwords

Number of paragraphs:

8

Counsel for the Applicants:

Mr R Cobden SC and Mr J Sleight

Solicitor for the Applicants:

Neville Hourn and Bourg Legal

Counsel for the Respondent/Cross-Claimant:

Mr MD Martin QC and Mr AF Messina

Solicitor for the Respondent/Cross-Claimant:

Mills Oakley Lawyers

Counsel for the Cross-Respondent:

Mr HPT Bevan

Solicitor for the Cross-Respondent:

Corrs Chambers Westgarth

ORDERS

NSD 1266 of 2018

BETWEEN:

JAMES KELLEND HARDINGHAM

First Applicant

REAL ESTATE MARKETING AUSTRALIA PTY LTD

Second Applicant

AND:

RP DATA PTY LIMITED

Respondent

AND BETWEEN:

RP DATA PTY LIMITED

Cross-Claimant

AND:

REALESTATE.COM.AU PTY LTD

Cross-Respondent

JUDGE:	THAWLEY J
DATE OF ORDER:	17 DECEMBER 2019

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicants pay the respondent’s costs of the proceeding, excluding the costs of the cross-claim:

(a)on a party and party basis up to 11.00am on 28 June 2019; and

(b)thereafter on an indemnity basis;

in a lump sum to be determined by a Registrar, pursuant to r 40.02(b) and (c) of the Federal Court Rules 2011 (Cth).

3.The cross-claim be dismissed.

4.The applicants pay the cross-respondent’s costs of the cross-claim except the costs of and incidental to the hearing of the separate question.

5.If the parties cannot agree by 28 February 2020 on the amount of the lump sum, then that costs dispute be referred to a Registrar of this Court to fix the amount of the referred costs dispute(s).

6.On or before 13 March 2020, the party entitled to costs in any referred costs dispute(s) file and serve any costs summary and submissions in accordance with the Costs Practice Note (GPN-COSTS).

7.On or before14 April 2020, the party paying costs in any referred costs dispute(s) file and serve any costs response and submissions in accordance with the Costs Practice Note (GPN-COSTS).

8.Pursuant to r 1.37 of the Rules, the Registrar:

(a)determine the quantum of costs in any referred costs dispute(s) in such manner as he or she thinks fit, including, if thought appropriate, on the papers;

(b)within 28 days of the making of the determination, make orders for the payment of the amounts so determined.

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

REASONS FOR JUDGMENT
(Revised from transcript)

THAWLEY J:

1. On 9 December 2019 I delivered reasons for concluding that the applicants had not discharged the onus of establishing that the respondent (RP Data) had infringed copyright in relation to the works the subject of a…