Knight v Beyond Properties Pty Ltd

Case [2005] FCA 764


FEDERAL COURT OF AUSTRALIA

Knight v Beyond Properties Pty Ltd [2005] FCA 764

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.

Federal Court of Australia Act 1976 (Cth) s 56
Federal Court Rules O 28 r 3(1)(c)

Hinde v Haskew (1884) 1 TLR 94 cited

Pearson v Naydler [1977] 1 WLR 899 at 902 cited

Orr v Lusute Pty Ltd (1987) 72 ALR 617 cited

Morris v Hanley [2000] NSWSC 957 cited

The Airtourer Co-operative Ltd v Millicer Aircraft Industries Pty Ltd [2004] FCA 1400 cited

Chang v Comcare Australia [1999] FCA 1677 cited

James v Australia and New Zealand Banking Group Ltd (No. 1) (1985) 9 FCR 442 cited

Weston v Beaufils (1993) 43 FCR 292 cited

Famel Pty Ltd v Burswood Management Ltd (1989) 11 ATPR 40-962 cited

Cameron’s Unit Services Pty Ltd v Kevin R Whelpton and Associates (Australia) Pty Ltd (1986) 13 FCR 46 cited

Gartner v Ernst & Young (No. 3) [2003] FCA 1437 cited

Barton v Minister for Foreign Affairs (1984) 2 FCR 463 cited

Cunningham v Olliver (unreported, Burchett J, 21 November 1994) cited

Loque v Hansen Technologies Ltd [2003] FCA 81 cited

Morris v Hanley & Ors [2001] NSWCA 374 cited

Melville v Craig Nowlan & Associates Pty Ltd (2002) 54 NSWLR 82 cited

ANDREW KNIGHT v BEYOND PROPERTIES PTY LTD & ORS

NSD 131 of 2005

LINDGREN J
10 JUNE 2005
SYDNEY


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 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

  1. 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…

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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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

LINDGREN J

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Ratio Decidendi

Legal Principle Established

Established by: LINDGREN J

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