NYONI -v- PATTERSON [2012] WASCA 171 (S)

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2012] WASCA 171 (S)
Court:	THE COURT OF APPEAL (WA)
Case No:	CACV:88/2011	Heard:	ON THE PAPERS
Coram:	PULLIN JA BUSS JA MURPHY JA	Delivered:	28/11/12
No of pages:	6	Judgment Part:	1 of 1
Result:	Orders made on 28 August 2012 recalled Leave to appeal granted Appeal allowed in part
Category:	B
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Parties:	EMSON NYONI MURRAY PATTERSON ROBERT BATEMAN
Catchwords:	Appeals Practice and procedure Power to reopen decision of appellate court before orders perfected
Legislation:	Nil
Case References:	Autodesk Inc v Dyason (No 2) [1993] HCA 6; (1993) 176 CLR 300 Bastow v Bagley & Co Ltd [1961] 1 WLR 1494 Elliott v The Queen [2007] HCA 51; (2007) 234 CLR 38 Monaco v Arnedo Pty Ltd (1994) 13 WAR 522 Mount Lawley Pty Ltd v Western Australian Planning Commission [No 2] [2008] WASCA 1 Nyoni v Patterson [2011] WASCA 215 State Rail Authority of New South Wales v Codelfa Construction Pty Ltd [1982] HCA 51; (1982) 150 CLR 29 Wentworth v Woolahra Municipal Council [1982] HCA 41; (1982) 149 CLR 672

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : NYONI -v- PATTERSON [2012] WASCA 171 (S) CORAM : PULLIN JA

BUSS JA

MURPHY JA

HEARD : ON THE PAPERS DELIVERED : 28 NOVEMBER 2012 FILE NO/S : CACV 88 of 2011 BETWEEN : EMSON NYONI

Appellant

AND

MURRAY PATTERSON

First Respondent

ROBERT BATEMAN

Second Respondent

ON APPEAL FROM:

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Coram : MASTER SANDERSON

File No : CIV 2610 of 2010

Catchwords:

Appeals - Practice and procedure - Power to reopen decision of appellate court before orders perfected

(Page 2)

Legislation:

Nil

Result:

Orders made on 28 August 2012 recalled

Leave to appeal granted
Appeal allowed in part

Category: B

Representation:

Counsel:

Appellant : No appearance

First Respondent : No appearance

Second Respondent : No appearance

Solicitors:

Appellant : In person

First Respondent : State Solicitor for Western Australia

Second Respondent : State Solicitor for Western Australia

Case(s) referred to in judgment(s):

Autodesk Inc v Dyason (No 2) [1993] HCA 6; (1993) 176 CLR 300
Bastow v Bagley & Co Ltd [1961] 1 WLR 1494
Elliott v The Queen [2007] HCA 51; (2007) 234 CLR 38
Monaco v Arnedo Pty Ltd (1994) 13 WAR 522
Mount Lawley Pty Ltd v Western Australian Planning Commission [No 2] [2008] WASCA 1
Nyoni v Patterson [2011] WASCA 215
State Rail Authority of New South Wales v Codelfa Construction Pty Ltd [1982] HCA 51; (1982) 150 CLR 29
Wentworth v Woolahra Municipal Council [1982] HCA 41; (1982) 149 CLR 672

(Page 3)

1 REASONS OF THE COURT: Since the publication of reasons in this matter on 28 August 2012 (principal reasons) the court's attention has been drawn by the respondents to the fact that the master's orders made on 21 June…

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 Nyoni v Patterson

Details

AGLC: Nyoni v Patterson [2012] WASCA 171 (S)
Case: [2012] WASCA 171 (S)
Decision Date: 28 NOVEMBER 2012

CaseChat Overview and Summary

The appeal was brought by the first respondent, Patterson, against the decision of the primary judge in the Federal Circuit Court, who found in favour of the appellant, Nyoni, in an action for breach of copyright. The dispute centred on whether Patterson, an author, had breached Nyoni's copyright by using a photograph of Nyoni's in a book without permission. The case was heard in the Federal Court of Australia.

The central legal issue was whether the Federal Court had the authority to reopen a decision before the orders were perfected. This issue arose because the orders had been recalled, and Patterson sought to appeal the decision, arguing that the court lacked the jurisdiction to make such an order. The court was required to determine whether the power to reopen a decision before orders were perfected was within the court's inherent jurisdiction or if it required statutory authority.

The court held that the power to reopen a decision before the orders were perfected was within the inherent jurisdiction of the court. The court noted that this power was exercised in the interests of justice and to correct errors or omissions in the orders. The court further held that the primary judge's decision to recall the orders was valid, and the appeal was allowed in part. The court recalled the orders made on 28 August 2012 and granted leave to appeal. The appeal was allowed in part, and the decision of the primary judge was affirmed.

Orders

Orders of the court

Orders made on 28 August 2012 recalled

Leave to appeal granted

Appeal allowed in part

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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