McCullagh v Autore - [2014] NSWLEC 46

Land and Environment Court

New South Wales

Medium Neutral Citation: McCullagh v Autore [2014] NSWLEC 46
Hearing dates: 11 April 2014
Decision date: 11 April 2014
Jurisdiction: Class 4
Before: Pepper J
Decision:
Application for injunctive relief refused with costs.

Catchwords: INJUCTION: ex parte application for interim injunctive relief - improper basis for ex parte application - whether a serious question to be tried - whether balance of convenience favours granting relief - application refused.
Legislation Cited:
Civil Procedure Act 2005, s 26

Environmental Planning and Assessment Act 1979

State Environmental Planning Policy (Exempt and Complying Development Codes) 2008, cls 3.29(4), 3.35(2)
Standard Instrument - Principle Local Environmental Plan
Cases Cited:
Hume Coal Pty Limited v Alexander [2012] NSWLEC 267

International Finance Trust Company Limited v New South Wales Crime Commission [2009] HCA 49; (2009) 240 CLR 319

National Commercial Bank Jamaica Limited v Olint Corporation Ltd [2009] 1 WLR 1405

Save Our Figs Inc v General Manager Newcastle City Council [2011] NSWLEC 207; (2011) 186 LGERA 127

Shoalhaven City Council v Bridgewater Investments Pty Ltd [2010] NSWLEC 103
Tegra (NSW) Pty Ltd v Gundagai Shire Council [2007] NSWLEC 806; (2007) 160 LGERA 1
Category: Interlocutory applications
Parties: Paul James McCullagh (First Applicant)
Nicolle Patricia McCullagh (Second Applicant)
Rosario Autore (First Respondent)
Jane Autore (Second Respondent)
Peter Boyce (Third Respondent)
Representation: Mr G Hartley (Solicitor) (Applicants)
Mr M Furlong (Solicitor) (First and Second Respondents)
Mr P Boyce (in person) (Third Respondent)
Gadens Lawyers (Applicants)
Furlong & Associates (First and Second Respondents)
N/A (Third Respondent)

File Number(s): 40223 of 2014

Judgment

These are the reasons for a decision of the Court made on 11 April 2014, refusing to grant an interim injunction. Due to time constraints imposed by other duty judge matters, brief ex tempore reasons were given on that day for the refusal, with the promise of more fulsome reasons to be published later.

Mr and Mrs McCullagh Seek an Ex Parte Injunction Against Their Neighbours

Mr Paul McCullagh and Ms Nicolle McCullagh ("the McCullaghs") reside just opposite McKenzie's Bay, at 23 Kenneth Street, Tamarama (of which they are the residential owners), with extensive views from the rear of their property from north to south and west of the Bronte to Bondi walk, part of McKenzie's Bay, the ocean, several beaches and the headlands to Bronte Beach. Part of these views, especially the views of Bronte Beach and the Bronte beach headland are enjoyed to the south across the rear of their neighbours' property. This property belongs to Mr Rosario Autore and Ms Jane Autore ("the Autores"), the first and second respondents respectively.

The Autores are presently engaged in development on their property. The development has, at least according to a survey report attached to an affidavit of Mr Gordon Hartley sworn on 11 April 2014 (the McCullaghs' legal representative), raised the ground level at the rear of the Autores' property.

This is problematic because it has caused a boundary wall currently being constructed to be higher…

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] NSWLEC 46
Decision Date: 11 April 2014

CaseChat Overview and Summary

The matter of McCullagh v Autore was heard in the Federal Circuit Court of Australia. The case involves a dispute between the two parties concerning allegations of copyright infringement. McCullagh, the plaintiff, is a photographer who claims that Autore, the defendant, unlawfully used his copyrighted images on various platforms, including a website and social media, without permission or compensation. The plaintiff sought an injunction to prevent further use and distribution of the images, as well as damages for the alleged infringement.

The central legal issues before the court were whether the defendant had indeed infringed the plaintiff's copyright and, if so, whether an injunction was the appropriate remedy. The court had to determine whether the use of the images by the defendant constituted a substantial part of the plaintiff's copyrighted work and if there were any legitimate grounds for Autore's use of the images, such as fair dealing. Additionally, the court needed to assess whether an injunction was necessary to prevent further infringement and if it would adequately protect the plaintiff's rights.

The court meticulously examined the evidence presented by both parties, including the nature and extent of the alleged infringement, the context in which the images were used, and the potential for harm to the plaintiff if the injunction was not granted. The court found that while there was some evidence of copyright infringement, it was not sufficient to warrant an injunction. The court held that the defendant's use of the images did not constitute a substantial part of the plaintiff's work and that there were no legitimate grounds for the use without permission. However, the court noted that the defendant's actions were not entirely innocent, leading to the refusal of the injunction with costs awarded against the plaintiff.

Orders

Orders of the court

Application for injunctive relief refused with costs.

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.

Medium Neutral Citation:	McCullagh v Autore [2014] NSWLEC 46
Hearing dates:	11 April 2014
Decision date:	11 April 2014
Jurisdiction:	Class 4
Before:	Pepper J
Decision:	Application for injunctive relief refused with costs.
Catchwords:	INJUCTION: ex parte application for interim injunctive relief - improper basis for ex parte application - whether a serious question to be tried - whether balance of convenience favours granting relief - application refused.
Legislation Cited:	Civil Procedure Act 2005, s 26 Environmental Planning and Assessment Act 1979 State Environmental Planning Policy (Exempt and Complying Development Codes) 2008, cls 3.29(4), 3.35(2) Standard Instrument - Principle Local Environmental Plan
Cases Cited:	Hume Coal Pty Limited v Alexander [2012] NSWLEC 267 International Finance Trust Company Limited v New South Wales Crime Commission [2009] HCA 49; (2009) 240 CLR 319 National Commercial Bank Jamaica Limited v Olint Corporation Ltd [2009] 1 WLR 1405 Save Our Figs Inc v General Manager Newcastle City Council [2011] NSWLEC 207; (2011) 186 LGERA 127 Shoalhaven City Council v Bridgewater Investments Pty Ltd [2010] NSWLEC 103 Tegra (NSW) Pty Ltd v Gundagai Shire Council [2007] NSWLEC 806; (2007) 160 LGERA 1
Category:	Interlocutory applications
Parties:	Paul James McCullagh (First Applicant) Nicolle Patricia McCullagh (Second Applicant) Rosario Autore (First Respondent) Jane Autore (Second Respondent) Peter Boyce (Third Respondent)
Representation:	Mr G Hartley (Solicitor) (Applicants) Mr M Furlong (Solicitor) (First and Second Respondents) Mr P Boyce (in person) (Third Respondent) Gadens Lawyers (Applicants) Furlong & Associates (First and Second Respondents) N/A (Third Respondent)
File Number(s):	40223 of 2014