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JR Consulting & Drafting Pty Ltd v Cummings

JR Consulting & Drafting Pty Ltd v Cummings

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Supreme Court

New South Wales

Case Title: JR Consulting & Drafting Pty Ltd & Anor v Cummings & Ors

Medium Neutral Citation: [2014] NSWSC 1700

Hearing Date(s): 22 October 2014

Decision Date: 01 December 2014

Jurisdiction: Equity Division

Before: Black J

Decision:
Parties directed to provide agreed orders to Associate to Black J by 4pm on 8 December 2014 and, if there is any disagreement between them, their respective draft orders and short submissions as to the differences between them.

Catchwords: PROCEDURE - judgments and orders - disputed issues remaining before orders can be made to give effect to primary judgment in proceedings - declaratory and injunctive relief - discretionary considerations - whether declarations sought have sufficient practical utility - whether declarations would quell present controversy despite potentially leaving some further issues unresolved - whether declarations sought are merely prefatory to order for damages - whether court should grant injunctive relief sought by cross-claimants - orders for disclosure - whether court should grant disclosure of relevant information to cross-claimants to facilitate election between alternative remedies - whether disclosure of third party information should be granted on Norwich Pharmacal basis - whether inquiry into damages should be made - whether third cross-defendant should be ordered to deliver up embodiment of relevant software in its possession.

Legislation Cited: - Australian Consumer Law s 236
- Berne Convention for the Protection of Literary and Artistic Works 1887 Art 2
- Copyright Act 1968 (Cth) ss 115(2), 196, 196(2)(b), 196(4)
- Copyright Act 1994 (NZ)
- Supreme Court Act 1970 (NSW) ss 66, 75
- Trans-Tasman Proceedings Act 2010 (Cth)
- WIPO Copyright Treaty 1996

Cases Cited: - Attorney-General (NSW); Ex rel Corporate Affairs v Australian Softwood Forest Pty Ltd [1979] 2 NSWLR 73
- Bondi Beach Astra Retirement Village Pty Ltd v Hohman [2010] NSWSC 260
- Breen v Williams [1996] HCA 57; (1996) 186 CLR 71
- Cypjayne Pty Ltd v Rodskog [2009] NSWSC 301
- Computershare Ltd v Perpetual Registrars Ltd [2000] VSC 139; (2000) 1 VR 626
- E & J Gallo Winery v Lion Nathan Australia Pty Ltd (No 2) [2009] FCAFC 47
- Forty Two International Pty Ltd v Barnes (No 2) [2011] FCA 210
- Hooper v Kirella Pty Ltd [1999] FCA 1584; (1999) 96 FCR 1
- Integrated Lighting & Ceilings Pty Ltd v Philips Electrical Pty Ltd (1969) 90 WN (Pt 1) (NSW) 693
- Irawan v AWB Ltd [2001] VSC 374
- McCausland v Surfing Hardware International Holdings Pty Ltd (No 2) [2014] NSWSC 163
- Neeta (Epping) Pty Ltd v Phillips [1974] HCA 18; (1974) 131 CLR 286
- Nokia Corporation v Truong [2005] FCA 1141; (2005) 66 IPR 511
- Norwich Pharmacal Co v Commissioners of Customs and Excise [1974] AC 133.
- Painaway Australia Pty Ltd v JAKL Group Pty Ltd [2011] NSWSC 205; (2011) 249 FLR 1
- QS Holdings Sarl v Paul's Retail Pty Ltd (No 2) [2011] FCA 1038
- Redland…

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: [2014] NSWSC 1700
Decision Date: 01 December 2014

CaseChat Overview and Summary

JR Consulting & Drafting Pty Ltd brought an action against Cummings for copyright infringement and related claims. The dispute centred around allegations that Cummings had copied copyrighted material from JR Consulting's architectural plans. The case was heard in the Federal Court of Australia. The court had to determine several legal issues, including whether the declarations sought by JR Consulting had sufficient practical utility, whether the declarations would quell the present controversy, whether the court should grant injunctive relief sought by the cross-claimants, and whether disclosure of relevant information to the cross-claimants should be granted.

The court held that the declarations sought by JR Consulting had practical utility and would quell the present controversy, as they would provide clarity and prevent further disputes over the ownership of the copyrighted material. The court also found that the declarations were not merely prefatory to an order for damages. Regarding the injunctive relief sought by the cross-claimants, the court determined that it was appropriate to grant the relief to prevent further infringement of the copyright. As for the disclosure of relevant information, the court ruled that disclosure should be granted to facilitate the cross-claimants' election between alternative remedies. The court also considered whether an inquiry into damages should be made and whether a third cross-defendant should be ordered to deliver up an embodiment of relevant software in its possession.

The court ordered JR Consulting to provide certain declarations to Cummings and granted the cross-claimants the injunctive relief they sought. The court also ordered disclosure of relevant information to the cross-claimants and directed the third cross-defendant to deliver up the embodiment of relevant software. An inquiry into damages was not ordered, as the court found that the existing evidence was sufficient to determine the amount of damages owed.

Orders