COSTS – Security for ‑ applicant a natural person – predisposition against ordering provision of security by an impecunious applicant – discretionary factors – question of weakness of applicant’s case on pleadings – effect of cross claim raising same facts – changes of applicant’s name and address.
SPECIAL BROADCASTING SERVICE CORPORATION (SBS) FOURTH RESPONDENT
FOXTEL MANAGEMENT PTY LTD FIFTH RESPONDENT
BEYOND PROPERTIES PTY LTD FIRST CROSS-CLAIMANT
BEYOND INTERNATIONAL LTD SECOND CROSS-CLAIMANT
ANDREW KNIGHT CROSS-RESPONDENT
JUDGE:
LINDGREN J
DATE OF ORDER:
10 JUNE 2005
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The respondents’ motion brought by a notice of motion filed on 4 May 2005 be dismissed.
2.The respondents pay the applicant’s costs of the motion.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD131 OF 2005
BETWEEN:
ANDREW KNIGHT APPLICANT
AND:
BEYOND PROPERTIES PTY LTD FIRST RESPONDENT
BEYOND INTERNATIONAL LTD SECOND RESPONDENT
DISCOVERY COMMUNICATIONS INC THIRD RESPONDENT
SPECIAL BROADCASTING SERVICE CORPORATION (SBS) FOURTH RESPONDENT
FOXTEL MANAGEMENT PTY LTD FIFTH RESPONDENT
BEYOND PROPERTIES PTY LTD FIRST CROSS-CLAIMANT
BEYOND INTERNATIONAL LTD SECOND CROSS-CLAIMANT
ANDREW KNIGHT CROSS RESPONDENT
JUDGE:
LINDGREN J
DATE:
10 JUNE 2005
PLACE:
SYDNEY
REASONS FOR JUDGMENT
INTRODUCTION
By a notice of motion filed on 4 May 2005, the respondents seek an order that the applicant provide security for their costs, up to but excluding trial, by way of bank guarantee…
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
AGLC
Knight v Beyond Properties Pty Ltd [2005] FCA 764
Case
[2005] FCA 764
Decision Date
CaseChat Overview and Summary
Knight v Beyond Properties Pty Ltd was an application for security for costs brought by the respondents in the Federal Court of Australia. The applicant, Mr Knight, is an internationally acclaimed writer involved in the development of television programs and the writing of novels. The respondents, Beyond Properties Pty Ltd, Discovery Networks Pty Ltd, Special Broadcasting Service, and Foxtel, are involved in the production, distribution, and broadcasting of television programs. Mr Knight filed an amended statement of claim alleging that the respondents had infringed his intellectual property rights concerning the name and mark 'Mythbusters'. The respondents applied for an order for security for costs under section 56 of the Federal Court of Australia Act, claiming that Mr Knight did not state his residential or business address in the application, contrary to the Federal Court Rules.
The legal issue before the court was whether Mr Knight's failure to state his address in the application for security for costs warranted an order for security for costs. The court considered whether the non-compliance with the Federal Court Rules was intentional or an honest mistake. The respondents argued that Mr Knight's failure to state his address was intentional and warranted an order for security for costs. Mr Knight argued that the failure to state his address was an honest mistake and did not warrant an order for security for costs. The court considered the evidence and submissions of both parties and found that Mr Knight's failure to state his address was an honest mistake and did not warrant an order for security for costs.
The court dismissed the respondents' motion for security for costs and ordered the respondents to pay Mr Knight's costs of the motion. The court found that the non-compliance with the Federal Court Rules was an honest mistake and did not warrant an order for security for costs. The court noted that the failure to state the address was remedied on the hearing of the motion, and there was no evidence of intentional non-compliance. The court also considered that the respondents were represented by the same firm of solicitors as the applicant, which made it more likely that the failure to state the address was an honest mistake. The court ordered the respondents to pay Mr Knight's costs of the motion, which were $2,000.
Orders
Orders of the court
1. The respondents’ motion brought by a notice of motion filed on 4 May 2005 be dismissed.
2. The respondents pay the applicant’s costs of the motion.
Background
Background to the litigation
Order 28 r 3(1) of the Federal Court Rules (‘the Rules’) provides that when considering an application by a respondent for an order for security for costs under s 56 of the FCA Act, the Court may take into account the matters mentioned in the sub‑rule, one of which is:‘(c) Subject to sub‑rule (2), that the address of the applicant is not stated or is incorrectly stated in the originating process’Sub‑rule (2) provides that the Court must not order security by reason only of para (1)(c) if it appears to the Court that the failure to state, or the incorrect statement of, the applicant’s address occurred without intention to deceive.BACKGROUND The application was filed on 25 January 2005. Contrary to O 4 r 4(1)(a) of the Rules and Form 5, Mr Knight did not state his residential or business address in the application. This non-compliance with the Rules was remedied only on the hearing of the motion when a further amended application was filed in Court stating Mr Knight’s address as 5B St Michaels Road, Mitcham SA 5062. Evidence on the substantive application has not yet been filed. The nature of the proceeding is revealed by the amended statement of claim filed on 11 April 2005, the further amended application filed on 1 June 2005, the respondents’ defence filed on 27 May 2005, and a cross claim brought by the first two respondents (collectively, ‘Beyond’), also filed on 27 May 2005. The following account is based on the amended statement of claim and does not represent any finding by me. Mr Knight is, and has at all material times been, involved in the development of television programs and the writing of novels. He is an internationally acclaimed writer. Beyond is involved in the production and distribution of television programs. The third respondent (‘Discovery’) carries on business as a television distributor. The fourth respondent (‘SBS’) carries on business as a national free to air television broadcaster. The fifth respondent (‘Foxtel’) carries on business as a provider of pay television. All respondents are represented by the same firm of solicitors (‘Phillips Fox’). Since 1988 Mr Knight has continuously carried on in Australia and internationally the business of, inter alia, developing, writing, producing and selling television programs, screenplays and novels, concerning the investigation of myths, under or by reference to the name and mark ‘Mythbusters’. The respondents admit that Mr Knight is the author or co‑author of three named ‘Mythbusters’ books, but otherwise deny his allegation as to his business activity. Apparently there will be an issue on the final hearing as to whether Mr Knight has a reputation ‘in television’ in Australia. Since 1988 goods and services provided by Mr Knight have been extensively promoted by reference to the name ‘Mythbusters’ in Australia and elsewhere. Mr Knight claims that since 1994 he has promoted a ‘Mythbusters’ television series in Australia based on the concept of the investigation of myths and mysteries contained in his ‘Mythbusters’ books. He claims to have submitted to Beyond a copy of a production ‘bible’ for the ‘Mythbusters’ television series, together with a copy of his third ‘Mythbusters’ book, a colour promotional brochure, and a copy of the pilot for the ‘Mythbusters’ television series.