Ron Englehart Pty Ltd v Enterprise Constructions (Aust) Pty Ltd - [2012] FCAFC 4

FEDERAL COURT OF AUSTRALIA
Ron Englehart Pty Ltd v Enterprise Constructions (Aust) Pty Ltd
[2012] FCAFC 4

Citation: Ron Englehart Pty Ltd v Enterprise Constructions (Aust) Pty Ltd [2012] FCAFC 4

Appeal from: Ron Englehart Pty Ltd v Enterprise Constructions (Aust) Pty Ltd [2010] FCA 820

Parties: RON ENGLEHART PTY LTD (ACN 005 657 554) v ENTERPRISE CONSTRUCTIONS (AUST) PTY LTD (ACN 067 405 896) and SAFAK ARLEN DERVISH

File number: VID 753 of 2010

Judges: JACOBSON, NICHOLAS & YATES JJ

Date of judgment: 17 February 2012

Catchwords: INTELLECTUAL PROPERTY – whether appellant’s copyright in building plan for project home infringed by respondents – where opportunity for access established – where striking similarities between copyright work and putative infringement – whether requirement of causal connection between copyright work and putative infringement satisfied – whether inference of copying should be drawn – whether onus of proof shifted to respondents – whether proven or admitted facts not explained justified drawing inference of copying – significance of expert evidence concerning similarities in project home designs – significance of appellant’s delay in commencing proceedings against respondents – whether refusal of primary judge to draw inference of copying open on the evidence – decision of primary judge open on the evidence and not shown to be wrong – appeal dismissed.

Legislation: Copyright Act 1968 (Cth) ss 31, 36

Cases cited: SW Hart & Co Pty Ltd v Edwards Hot Water Systems (1985) 159 CLR 466
Jones v Dunkel (1959) 101 CLR 298
Vawdrey Australia Pty Ltd v Krueger Transport Equipment Pty Ltd (2009) 261 ALR 269
Pacific Gaming Pty Ltd v Aristocrat Leisure Industries Pty Ltd (2001) 116 FCR 448
Ibcos Computers Ltd v Barclays Mercantile Highland Finance Ltd [1994] FSR 275
Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424

Date of hearing: 28 February, 1 March 2011

Place: Melbourne

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 116

Counsel for the Appellant: Mr C Golvan SC with Mr B Gardiner

Solicitor for the Appellant: Middletons

Counsel for the Respondents: Mr P Cawthorn SC with Mr C Madder

Solicitor for the Respondents: Coolabah Law Chambers

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 753 of 2010

ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA

BETWEEN:
RON ENGLEHART PTY LTD (ACN 005 657 554)
Appellant

AND:
ENTERPRISE CONSTRUCTIONS (AUST) PTY LTD
(ACN 067 405 896)
First Respondent

SAFAK ARLEN DERVISH
Second Respondent

JUDGES:

JACOBSON, NICHOLAS & YATES JJ

DATE OF ORDER:

17 FEBRUARY 2012

WHERE MADE:

SYDNEY (HEARD IN MELBOURNE)

THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the respondents’ costs of the appeal.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 753 of 2010

ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA

BETWEEN:
RON ENGLEHART PTY LTD (ACN 005 657 554)
Appellant

AND:
ENTERPRISE CONSTRUCTIONS (AUST) PTY LTD
(ACN 067 405 896)

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.

Keep reading for free

Create a free CaseChat account to read Ron Englehart Pty Ltd v Enterprise Constructions (Aust) Pty... and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2012] FCAFC 4
Decision Date: 17 February 2012

CaseChat Overview and Summary

Ron Englehart Pty Ltd, the appellant, filed an appeal against Enterprise Constructions (Aust) Pty Ltd, the respondent, regarding the alleged infringement of copyright in a building plan for a project home. The case was heard in the Federal Court of Australia. The primary judge ruled in favour of the respondents, finding no infringement of copyright, and the appellant sought to appeal this decision.

The central legal issues in this case involved whether the respondents' building plans infringed upon the appellant's copyright and, if so, whether the respondents had a causal connection to the appellant's copyright work. The court was required to determine whether the striking similarities between the two sets of plans were due to copying, and if the onus of proof had shifted to the respondents. Additionally, the court considered the significance of expert evidence regarding the similarities in the project home designs and the appellant's delay in commencing proceedings.

The court found that the decision of the primary judge was open on the evidence presented and could not be considered erroneous. The similarities between the two sets of plans were not enough to conclusively prove copying, and the appellant had not provided sufficient evidence to shift the onus of proof to the respondents. The court also highlighted the importance of the appellant's delay in commencing proceedings against the respondents, which weakened their case. The appeal was dismissed, and the appellant was ordered to pay the respondents' costs of the appeal.

In conclusion, the Federal Court of Australia dismissed the appeal and upheld the primary judge's decision, finding that the respondents' building plans did not infringe upon the appellant's copyright. The court ruled that the onus of proof had not been sufficiently shifted to the respondents, and the appellant's delay in commencing proceedings further weakened their case. The appellant was ordered to pay the respondents' costs of the appeal.

Orders

Orders of the court

1. The appeal be dismissed.

2. The appellant pay the respondents’ costs of the appeal.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citation:	Ron Englehart Pty Ltd v Enterprise Constructions (Aust) Pty Ltd [2012] FCAFC 4
Appeal from:	Ron Englehart Pty Ltd v Enterprise Constructions (Aust) Pty Ltd [2010] FCA 820
Parties:	RON ENGLEHART PTY LTD (ACN 005 657 554) v ENTERPRISE CONSTRUCTIONS (AUST) PTY LTD (ACN 067 405 896) and SAFAK ARLEN DERVISH
File number:	VID 753 of 2010
Judges:	JACOBSON, NICHOLAS & YATES JJ
Date of judgment:	17 February 2012
Catchwords:	INTELLECTUAL PROPERTY – whether appellant’s copyright in building plan for project home infringed by respondents – where opportunity for access established – where striking similarities between copyright work and putative infringement – whether requirement of causal connection between copyright work and putative infringement satisfied – whether inference of copying should be drawn – whether onus of proof shifted to respondents – whether proven or admitted facts not explained justified drawing inference of copying – significance of expert evidence concerning similarities in project home designs – significance of appellant’s delay in commencing proceedings against respondents – whether refusal of primary judge to draw inference of copying open on the evidence – decision of primary judge open on the evidence and not shown to be wrong – appeal dismissed.
Legislation:	Copyright Act 1968 (Cth) ss 31, 36
Cases cited:	SW Hart & Co Pty Ltd v Edwards Hot Water Systems (1985) 159 CLR 466 Jones v Dunkel (1959) 101 CLR 298 Vawdrey Australia Pty Ltd v Krueger Transport Equipment Pty Ltd (2009) 261 ALR 269 Pacific Gaming Pty Ltd v Aristocrat Leisure Industries Pty Ltd (2001) 116 FCR 448 Ibcos Computers Ltd v Barclays Mercantile Highland Finance Ltd [1994] FSR 275 Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424
Date of hearing:	28 February, 1 March 2011
Place:	Melbourne
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	116
Counsel for the Appellant:	Mr C Golvan SC with Mr B Gardiner
Solicitor for the Appellant:	Middletons
Counsel for the Respondents:	Mr P Cawthorn SC with Mr C Madder
Solicitor for the Respondents:	Coolabah Law Chambers

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 753 of 2010

JUDGES:	JACOBSON, NICHOLAS & YATES JJ
DATE OF ORDER:	17 FEBRUARY 2012
WHERE MADE:	SYDNEY (HEARD IN MELBOURNE)

BETWEEN:	RON ENGLEHART PTY LTD (ACN 005 657 554) Appellant
AND:	ENTERPRISE CONSTRUCTIONS (AUST) PTY LTD (ACN 067 405 896)