Pocketful of Tunes Pty Ltd v The Commonwealth of Australia (No 2)

Pocketful of Tunes Pty Ltd was the plaintiff and The Commonwealth of Australia was the defendant in proceedings before the Copyright Tribunal. Pocketful of Tunes Pty Ltd sought to recover a fee for the unauthorised use of a song, "I Am Australian", which had been synchronised in a Commonwealth-funded film. The Tribunal had already determined that the Commonwealth should pay Pocketful of Tunes Pty Ltd a fee for the unauthorised use of the song and that the parties should submit proposed orders as to costs. The parties were unable to agree on the costs and the Tribunal was required to determine the costs of the proceeding. The key legal issue before the Tribunal was the assessment of costs to be awarded to the plaintiff following the determination of liability by the Tribunal. Specifically, the Tribunal had to determine whether the plaintiff was entitled to recover their costs from the defendant and, if so, the basis on which those costs should be assessed. The Tribunal also had to determine the appropriate amount of interest to be paid on the fee awarded to the plaintiff.

The Tribunal found that the plaintiff was entitled to recover their costs from the defendant. The Tribunal noted that the plaintiff had provided a basis for the amount of the fee that they claimed and an argument in support. The Tribunal also found that there was no basis to reduce the costs payable by the defendant by reason of the quantum of the fee that the plaintiff claimed, by reason of any unreasonable conduct of the hearing, or by reason of an unreasonable rejection of an offer to settle. The Tribunal found that the plaintiff was entitled to recover their costs up to and including 25 July 2013 on the ordinary basis and that the defendant was to pay the plaintiff's costs from 26 July 2013 on an indemnity basis. The Tribunal also determined that the plaintiff was entitled to recover interest on the fee awarded to them. The Tribunal found that the plaintiff was entitled to recover interest on the fee awarded to them in the sum of $39,994.

The Tribunal ordered that the fee for the synchronisation rights of the song “I am Australian” to be paid by the Commonwealth to Pocketful of Tunes Pty Ltd be increased by $39,994 in interest from $149,743.34 to $189,737.34, exclusive of GST. The Tribunal also ordered that the defendant pay the plaintiff's costs up to and including 25 July 2013 on the ordinary basis and that the plaintiff pay the defendant's costs from 26 July 2013 on an indemnity basis.