Phonographic Performance Company of Australia Limited v Copyright Tribunal of Australia (Costs)

The Phonographic Performance Company of Australia Limited (PPCA) and others brought proceedings against the Copyright Tribunal of Australia, seeking judicial review of a decision of the Tribunal to vary a licence scheme under the Copyright Act 1968 (Cth). The Court allowed the application in part, finding that the Tribunal had erred in concluding that the scheme could incorporate non-PPCA rights. The parties have made competing submissions regarding costs. The Majors contend that Foxtel should pay their costs as they were successful on the sole issue in which they participated, and made the bulk of the submissions to the Court. Foxtel argues that PPCA should pay 65% of its costs, as PPCA had partial success and the Power Issue was separate from the other issues. PPCA argues that there should be no order as to costs as it was successful on one half of the case and failed on the other.

The Court considered the submissions of the parties and noted that the Power Issue was separate from the other issues, which occupied a significant amount of effort. The Court also considered the Majors’ position, akin to an intervener in the proceedings, and their indication in the application for joinder that they were prepared to be joined on a no-costs basis. The Court found that the first applicant should pay 50% of the second respondent’s costs of the proceedings on a party and party basis, fixed as a lump sum pursuant to r 40.02(b) of the Federal Court Rules 2011 (Cth), to be agreed between those parties or, failing agreement, to be determined by a Registrar of the Court. The Court also found that the second respondent should pay 70% of the second to fourth applicants’ costs on a party and party basis, fixed as a lump sum pursuant to r 40.02(b) of the Federal Court Rules 2011 (Cth), to be agreed between those parties or, failing agreement, to be determined by a Registrar of the Court.

In conclusion, the Court has made orders regarding costs in the proceedings, taking into account the submissions of the parties and the effort devoted to each issue. The first applicant is ordered to pay 50% of the second respondent’s costs, and the second respondent is ordered to pay 70% of the second to fourth applicants’ costs. These costs are to be fixed as a lump sum and determined by the parties or, failing agreement, by a Registrar of the Court.