Li v LENG (No.2) - [2013] FCCA 2075

FEDERAL CIRCUIT COURT OF AUSTRALIA

LI v LENG (No.2)

[2013] FCCA 2075

Catchwords:
PRACTICE AND PROCEDURE – COSTS – Respondent seeking indemnity costs in action filed under the Copyright Act 1968 (Cth) where unrepresented Applicant was wholly unsuccessful – circumstances in which an order for costs on an indemnity basis is appropriate – consideration of the fact that the Applicant was an unrepresented litigant – consideration and application of relevant legal principles – Respondent’s costs to be paid on a party and party basis.

Legislation:

Copyright Act 1968 (Cth)
Federal Circuit Court of Australia Act1999 (Cth), s.79
Federal Circuit Court Rules 2001 (Cth), Reg.21.02

Bhagat v Global Custodians Ltd [2002] FCAFC 51
Bhagat v Royal & Sun Alliance Life Assurance Australia Ltd [2000] NSWSC 159
Colgate-Palmolive Company and Anor v Cussons Pty Ltd (1993) 46 FCR 225
Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd and Ors (1988) 81 ALR 397

Hughes v Western Australian Cricket Association (Inc) and Ors (1986)
19 FCR 10

J-Corp Pty Ltd v Australian Builders Labourers Federated Union of Workers, Western Australian Branch and Anor (No 2) [1993] 46 IR 301

Johnson v Santa Teresa Housing Association and Anor (1992) 107 FLR 441
Penhall-Jones v State of NSW (No 2) [2007] FCA 1225

Ragata Developments Pty Ltd v Westpac Banking Corporation (1993) 217 ALR 175

Travers v New South Wales (2001) 163 FLR 99

Unioil International Pty Ltd and Ors v Deloitte Touche Tohmatsu and Anor (No.2) (1997) 18 WAR 190

Applicant:

DONGGUANG LI

Respondent:

JINSONG LENG

File Number:

PEG 88 of 2012

Judgment of:

Judge Whelan

Hearing date:

By written submissions

Date of Last Submission:

3 October 2013

Delivered at:

Melbourne

Delivered on:

6 December 2013

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the Respondent:

Mr G Provan

Solicitors for the Respondent:

Guy Provan

ORDERS

The Applicant is to pay the Respondent’s costs in connection with these proceedings on a party and party basis, to be taxed if not agreed.
If, within 21 days of the making of this Order, the costs have not been agreed, the Respondent is at liberty to apply to have his costs taxed.
The costs, as agreed or as taxed, are to be paid within 21 days of the agreement or the date of the Certificate of Taxation.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

PEG 88 of 2012

DONGGUANG LI

Applicant

And

JINSONG LENG

Respondent

REASONS FOR JUDGMENT

Introduction

On 19 September 2013, judgment was handed down in this matter and the Amended Application of Mr DONGGUANG LI (“the Applicant”), filed on 20 August 2012, was dismissed.
On 19 September 2013, the Respondent, Mr JINSONG LENG (“the Respondent”), made an application for an order for costs and accordingly, orders were made for the filing of submissions in support of the application, and for the Applicant in the substantive matter to file submissions in reply.[1]
[1] Order made 19 September 2013.
Submissions by the Respondent were received on 3 October 2013.[2]

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: [2013] FCCA 2075
Decision Date: 6 December 2013

CaseChat Overview and Summary

In *Li v LENG (No.2)*, the Federal Circuit Court of Australia considered a dispute concerning alleged copyright infringement. The applicant, Li, sought to restrain the respondent, LENG, from infringing copyright in certain artistic works.

The primary legal issue before the Court was whether the respondent had infringed the applicant's copyright in the artistic works. This involved determining whether the works were original, whether the respondent had copied them, and if so, whether the copying amounted to an infringement of the exclusive rights granted to the copyright owner under the *Copyright Act 1968* (Cth).

Whelan J applied the principles of copyright law, focusing on the requirements for originality and the test for substantiality in relation to copying. The Court considered the evidence presented by both parties regarding the creation of the works and the alleged copying. The Court's reasoning would have addressed whether the respondent's actions constituted a reproduction of a substantial part of the applicant's copyright material, taking into account the qualitative and quantitative aspects of the copying.

The Court made orders in favour of the applicant, finding that the respondent had infringed the applicant's copyright.

Orders