FEDERAL COURT OF AUSTRALIA
Roadshow Films Pty Ltd v iiNet Limited [2009] FCA 332
PRACTICE AND PROCEDURE – Pleadings – summary judgment and strike out – requirements of ‘no reasonable prospect of success’ – whether a strike out is more appropriate than summary judgment – s 31A Federal Court of Australia Act 1976 (Cth) – O 11 r 16 Federal Court Rules (Cth)
INTELLECTUAL PROPERTY – Copyright – facts necessary to give rise to a claim of conversion – whether there is an ‘infringing copy’ – s 116 Copyright Act 1968 (Cth)
PRACTICE AND PROCEDURE – Costs – whether both parties were partially successful – whether costs should be awarded to a party
Copyright Act 1968 (Cth) ss 10, 86(c), 104, 116, 116AB, 116AC
Federal Court of Australia Act 1976 (Cth) ss 31A, 43
Federal Court Rules (Cth) O 11 r 16, O 12 r 5(1)(b), O 13 r 4, O 29 r 2, O 58 r 16
Telecommunications Act 1997 (Cth) s 7ACCC v Alice Car & Truck Rentals Pty Ltd (unreported, O’Loughlin J, 5 March 1997) referred to
AWB Ltd v Honourable Terrance Rhoderic Hudson Cole (No 6) [2006] FCA 1274 followed
Commonwealth Bank of Australia (ACN 123 123 124) v ACN 000 247 601 Pty Ltd (in liq) (formerly Stanley Thompson Valuers) [2006] FCA 1416 referred to
Fortron Automotive Treatments Pty Ltd v Jones (No 2) [2006] FCA 1401 referred to
GeneralSteel Industries Inc v Commissioner for Railways (N.S.W.) and Others (1964) 112 CLR 125 referred to
International Writing Institute Inc v Rimala Pty Ltd and Another (1995) 57 FCR 135 referred to
Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd and Others (2008) 167 FCR 372 considered
Jewiss v Deputy Commissioner of Taxation (2006) 65 ATR 222 cited
Kowalski v MMAL Staff Superannuation Fund Pty Ltd (No 2) [2008] FCA 691 referred to
Oakley v Lyster [1931] 1 KB 148 referred to
Ruddock and Others v Vardarlis and Others (No 2) (2001) 115 FCR 229 referred to
Universal Music Australia Pty Ltd v Cooper [2005] FCA 1878 followed
Universal Music Australia Pty Ltd and Others v Cooper and Others (2005) 150 FCR 1 followed
Universal Music Australia Pty Ltd and Others v Sharman Licence Holdings Ltd and Others 65 IPR 289 followed
Venus Adult Shops Pty Ltd and Others v Fraserside Holdings Ltd and Another (2006) 157 FCR 442 referred to
Wills v Australian Broadcasting Corporation (2009) 253 ALR 22 referred toROADSHOW FILMS PTY LTD (ACN 100 746 870) and THE PARTIES IN THE ATTACHED SCHEDULE 1 v IINET LIMITED (ACN 068 628 937)
NSD 1802 of 2008
COWDROY J
15 APRIL 2009
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 1802 of 2008
BETWEEN: ROADSHOW FILMS PTY LTD (ACN 100 746 870)
First ApplicantTHE PARTIES IN THE ATTACHED SCHEDULE 1
Second Applicant to Thirty-Forth Applicant
AND: IINET LIMITED (ACN 068 628 937)
Respondent
JUDGE:
COWDROY J
DATE OF ORDER:
15 APRIL 2009
WHERE…
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- Case
- [2009] FCA 332
- Decision Date
CaseChat Overview and Summary
The legal issues before the court required it to address the procedural matters and substantive claims. Primarily, the court needed to determine how to properly frame the claims regarding the conversion of infringing copies, specifically separating those claims arising from the transmission of data from those arising from the storage of data by iiNet. The court also needed to establish the procedural steps moving forward, including the timeline for amendments to pleadings, the filing of affidavits, and the scheduling of expert evidence.
In its reasoning, the court recognised that the claims of conversion needed to be clearly delineated between those related to data transmission and those related to data storage. This required the Applicants to amend their pleadings to specify the processes involved. Additionally, the court provided a detailed schedule for the procedural steps, including deadlines for filing amended pleadings, affidavits, and expert evidence. The court emphasised the importance of adhering to these timelines to ensure an efficient progression of the case. The orders made were intended to clarify the procedural path and to ensure that the substantive issues could be addressed effectively and fairly.
Orders
Orders of the court
1. Pursuant to O 29 r 2 of the Federal Court Rules (Cth), all issues of the quantum of any pecuniary relief be heard and determined separately from and after all other issues.
2. By 22 April 2009 the Applicants amend paragraphs 67A to 67E inclusive of the Amended Statement of Claim (and, if necessary, the Particulars thereto) in such manner as to specify precisely the process by which the infringing copies are alleged to have been converted, identifying separately those facts giving rise to conversion which is claimed to have resulted from transmission of data and/or those facts giving rise to conversion which is claimed to have resulted from the storage of data by iiNet’s facilities. Such amendment is to provide at least one instance of an infringing copy relied upon by the Applicants in support of the conversion claim arising from both transmission and storage of data.
3. Each party pay its own costs of the proceedings.
4. The time fixed by O 13 r 4 of the Federal Court Rules (Cth) for the filing of the Respondent’s Amended Defence be varied to 29 April 2009.
5. The Applicants file and serve any further affidavits in chief by 22 April 2009.
6. Order 5 of the orders made 6 February 2009 be varied so that the date by which the Respondent is to file and serve any affidavits (not including expert evidence) in answer to the Applicants’ affidavits in chief, be extended to 31 July 2009.
7. The date in order 6 of the orders made 6 February 2009, by which the Applicants are to file and serve any affidavit in reply, be extended to 28 August 2009.
8. The Respondent file and serve any affidavits of its experts by 14 August 2009.
9. The Applicants to file and serve any affidavit in reply to the Respondent’s expert evidence by 11 September 2009.
10. There be liberty to apply on 3 days notice.
11. The directions hearing fixed at 9.30 am on 29 July 2009 be confirmed.
THE COURT NOTES THAT
1. Following the filing by the Respondent of the ‘Respondent’s Statement of Nature of Case’ on 9 April 2009, the Respondent has met the obligation it undertook to provide a statement of the nature of the case on which it relies for the purposes of paragraph 59 and 62 of the Defence both as to the allegations of fact and as to the conclusions of law to which those paragraphs respond pursuant to O 12 r 5(1)(b) of the Federal Court Rules (Cth).
Note:
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
Established by: COWDROY J
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