Roadshow Films Pty Ltd v iiNet Ltd (No 4)

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FEDERAL COURT OF AUSTRALIA

Roadshow Films Pty Ltd v iiNet Limited (No. 4) [2010] FCA 645

Citation: Roadshow Films Pty Ltd v iiNet Limited (No. 4)
[2010] FCA 645
Parties: ROADSHOW FILMS PTY LTD (ACN 100 746 870) and PARTIES IN ATTACHED SCHEDULE 1 v IINET LIMITED (ACN 068 628 937)
File number: NSD 1802 of 2008
Judge: COWDROY J
Date of judgment: 25 June 2010
Catchwords:

PRACTICE AND PROCEDURE – Costs – Discretion of the Court – Finding that the respondent had not authorised infringement of applicants’ copyright – Such finding rendered reliance upon respondent’s statutory defences unnecessary – Whether such defences would have been successful – Finding that such defences would not have succeeded –Whether apportionment of costs should be made because the successful party could not have relied on defences – Held – No apportionment of costs warranted.

PRACTICE AND PROCEDURE – Costs – Indemnity Costs – Whether applicants’ conduct warrants the award of indemnity costs in relation to the primary infringement claim – Held – Applicants’ conduct did not warrant the award of indemnity costs.
Legislation: Copyright Act 1968 (Cth) ss 10, 112E, 116
Federal Court of Australia Act 1976 (Cth) s 43
Supreme Court Act 1935 (S.A.) s 40
Telecommunications Act 1997 (Cth) ss 276, 279, 280, 289, 290
Cases cited: Aristocrat Technologies Australia Pty Limited (ACN 001 660 715) v Global Gaming Supplies Pty Limited (ACN 008 548 589) (No 2) [2010] FCA 277 cited
AWA Ltd v George Richard Daniels trading as Deloitte Haskins and Sells (Unreported, 50271 of 1991 NSWSC Comm D, Delivered 8 October 1992) cited
Colgate-Palmolive Company and Another v Cussons Pty Limited (1993) 46 FCR 225 cited
Commissioner of Australian Federal Police v Razzi and Others (No 2) (1991) 101 ALR 425 cited
Cretazzo v Lombardi (1975) 13 S.A.S.R. 4 discussed
Dias Aluminium Products Pty Ltd v Ullrich Aluminium Pty Ltd (No 2) (2005) 225 ALR 569 cited
Dodds Family Investments Pty Ltd (formerly Solar Tint Pty Ltd) and Another v Lane Industries Pty Ltd and Others (1993) 26 IPR 261 cited
Doric Products Pty Ltd v Lockwood Security Products Pty Ltd (2002) 54 IPR 495 cited
Dr Martens Australia Pty Ltd v Figgins Holdings Pty Ltd (No 2) [2000] FCA 602 cited
Elite Protective Personnel Pty Ltd & Another v Salmon (No 2) [2007] NSWCA 373 cited
H Lundbeck A/S v Alphapharm Pty Ltd (No 2) [2009] FCAFC 118 cited
Howards Storage World Pty Ltd v Haviv Holdings Pty Ltd [2010] FCAFC 5 cited
Hughes v Western Australian Cricket Association (Inc) and Others (1986) 8 ATPR 40-748 discussed
JMVB Enterprises Pty Ltd (Formerly A ’Van Campers Pty Ltd) v Camoflag Pty Ltd (No 2) [2007] FCAFC 6 cited
Latoudis v Casey (1990) 170 CLR 534 cited
Lockwood Security Products Pty Ltd v Doric Products Pty Ltd (No 2) [2007] FCAFC 172 cited
Norbis v Norbis (1986) 161 CLR 513 cited
Oshlack v Richmond River Council (1998) 193 CLR 72 cited
Preston v Preston (1982) 1 All ER…
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Details
Case
[2010] FCA 645
Decision Date

CaseChat Overview and Summary

The case of Roadshow Films Pty Ltd v iiNet Ltd (No 4) was before the court, where the primary issue involved the determination of costs in relation to a copyright infringement dispute. The applicants, Roadshow Films, alleged that iiNet, an internet service provider, had facilitated the infringement of their copyrights. The legal issues the court had to decide included whether iiNet had authorised the infringement and if the statutory defences that iiNet had invoked would have been successful. The court found that iiNet had not authorised the infringement, and therefore, the statutory defences did not need to be considered. Additionally, the court determined that these defences would not have been successful even if they had been considered.

The court's reasoning focused on the unsuccessful reliance by iiNet on its statutory defences, which rendered the question of their success moot. Given that iiNet could not rely on these defences, the court held that there was no basis for apportioning costs between the parties. Consequently, the court rejected iiNet’s claim for indemnity costs, finding that Roadshow Films’ conduct did not warrant such an award. The court ruled that iiNet was entitled to its costs on the usual basis in respect of its defence and investigation of the primary infringement claim. The court concluded that both the claim for apportionment of costs by the applicants and the claim for indemnity costs by iiNet were dismissed.

The final orders of the court mandated that the applicants pay the costs of iiNet, including costs thrown away due to the abandonment of the primary infringement claim by the applicants. Additionally, each party was to bear its own costs in relation to the application for costs. This decision underscores the court's careful consideration of the procedural aspects of the case, particularly focusing on the appropriate allocation of costs in light of the findings regarding the authorisation of infringement and the effectiveness of statutory defences.

Orders

Orders of the court

1. The Applicants pay the costs of the Respondent of and incidental to the proceedings including costs thrown away as a result of the abandonment by the Applicants of their primary infringement claim against the Respondent.

2. The Applicants and Respondent each bear their own costs of this Application for Costs.

Note:

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Accordingly, the Court finds that the applicants’ conduct falls short of meriting an award of indemnity costs against them and the Court rejects iiNet’s claim for indemnity costs. However, there is no reason why iiNet should not be entitled to its costs on the usual basis in respect of its defence and investigation of the primary infringement claim.Conclusion It follows that the claim by the applicants for apportionment of costs and the claim by iiNet for indemnity costs are both dismissed.

Ratio Decidendi

Legal Principle Established

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