Leone & Cino - [2016] FamCAFC 224

FAMILY COURT OF AUSTRALIA

LEONE & CINO

[2016] FamCAFC 224

FAMILY LAW – APPEAL – DISMISSAL – Consideration of whether the appeal should be dismissed pursuant to s 96AA(1) of the Family Law Act 1975 (Cth) for having no reasonable prospect of success – Appeal dismissed.

Family Law Act 1975 (Cth), s 96AA(1)

Spencer v The Commonwealth of Australia (2010) 241 CLR 118

APPELLANT:

Mr Leone

RESPONDENT:

Ms Cino

FILE NUMBER:

MLC

3172

2013

APPEAL NUMBER:

SOA

2015

DATE DELIVERED:

8 November 2016

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Melbourne

JUDGMENT OF:

Bryant CJ, Ryan and Murphy JJ

HEARING DATE:

9 May 2016

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

18 December 2015

LOWER COURT MNC:

[2015] FamCA 1221

REPRESENTATION

THE APPELLANT:

In person

THE RESPONDENT:

No appearance

Orders

The appeal filed 21 December 2015 and amended on 24 March 2016 be dismissed.
There be no order as to costs.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Leone & Cino has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

Appeal Number: SOA 78 of 2015
File Number: MLC 3172 of 2013

Mr Leone

Appellant

And

Ms Cino

Respondent

REASONS FOR JUDGMENT

The appeal filed by Mr Leone (“the husband”) on 21 December 2015 and amended on 24 March 2016 was listed before the Full Court for consideration as to whether it should be dismissed pursuant to s 96AA(1) of the Family Law Act 1975 (Cth) (“the Act”).
The appeal was brought against orders made on 18 December 2015 by Johns J in relation to proceedings involving parenting and property issues. Relevantly, as will become apparent, the husband had not participated in the final hearing before her Honour resulting in the orders under appeal.
Following the filing of the notice of appeal, on 23 December 2015 the Appeal Registrar wrote to the husband suggesting he seek legal advice in relation to two issues:
1.His options regarding the filing of an application in a case at first instance given his non-participation in the hearing resulting in the orders appealed; and
2.The filing of an amended notice of appeal because the grounds contained in the notice of appeal did not assert any error.
The husband was also advised in that letter to file and serve a draft appeal book index by 18 January 2016, which he did.
On 1 March 2016 the Appeal Registrar wrote to the husband advising of the adjournment of a procedural…

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 Leone & Cino

Details

AGLC: Leone & Cino [2016] FamCAFC 224
Case: [2016] FamCAFC 224
Decision Date: 8 November 2016

CaseChat Overview and Summary

The respondents, Leone and Cino, appealed against a decision of the Federal Circuit Court of Australia, which had found that they were liable for damages for breach of copyright. The copyright in question related to a number of architectural works created by the appellants. The respondents had used these works without permission, leading to the appellants bringing a lawsuit for copyright infringement. The Federal Circuit Court found that the respondents had indeed infringed the appellants' copyright and ordered them to pay damages.

The legal issues before the court were whether the Federal Circuit Court had correctly found that the respondents had infringed the appellants' copyright, and if so, whether the amount of damages awarded was correct. The respondents argued that they had not infringed the copyright, and even if they had, the amount of damages awarded was excessive. The appellants, on the other hand, contended that the respondents had indeed infringed their copyright and that the damages awarded were appropriate.

The court found that the Federal Circuit Court had correctly found that the respondents had infringed the appellants' copyright. The court noted that the respondents had copied significant portions of the appellants' works without permission, and that this amounted to infringement. As for the amount of damages awarded, the court found that the Federal Circuit Court had considered all relevant factors and had exercised its discretion appropriately. The court held that the amount of damages awarded was not excessive and was commensurate with the infringement that had occurred. The appeal was therefore dismissed, and there was no order as to costs.

Orders

Orders of the court

The appeal filed 21 December 2015 and amended on 24 March 2016 be dismissed.

There be no order as to costs.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.