Sky Channel Pty Limited v Austar Entertainment Pty Limited and Thoroughvision Pty Limited

CITATION:
Sky Channel Pty Limited v Austar Entertainment Pty Limited & Thoroughvision Pty Limited [2005] NSWSC 851

HEARING DATE(S): 12/08/05

JUDGMENT DATE :

25 August 2005

JURISDICTION:
Equity Division
Commercial List

JUDGMENT OF:
Einstein J

DECISION:
Defendants to pay plaintiff's costs

CATCHWORDS:
Costs - Interlocutory hearing

PARTIES:
Sky Channel Pty Limited (Plaintiff)
Austar Entertainment Pty Limited (First Defendant)
Thoroughvision Pty Limited (Second Defendant)

FILE NUMBER(S):
SC 50122/05

COUNSEL:
Mr R Dick (Plaintiff)
Mr M White (First Defendant)
Mr S Rushton SC (Second Defendant)

SOLICITORS:
Freehills (Plaintiff)
Tress Cox (First Defendant)
Clayton Utz (Second Defendant)

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
COMMERCIAL LIST

Einstein J

Thursday 25 August 2005

50122/05 Sky Channel Pty Limited v Austar Entertainment Pty Limited & Thoroughvision Pty Limited

JUDGMENT

Decision in respect of costs of the interlocutory injunctive application

1 The judgment on the application for interlocutory injunctive relief was handed down on 11 August 2005 [2005] NSWSC 815.

2 Argument took place with respect to costs on 12 August 2005. The decision was reserved.

3 There is a wide discretion in the Court in terms of the appropriate costs orders to be made in any given circumstance.

4 The background to the commencement of proceedings was adequately outlined in the judgment. By far and away the most significant issues litigated during the interlocutory hearing concerned the balance of convenience: cf judgment (at [39] and [40]). Those are not matters which are likely to loom large in the matters to be litigated in the final hearing.

5 For the reasons given in the judgment Austar determined to take a calculated risk that it would be necessary to defend its position in interlocutory proceedings. The same was the case insofar as TVN was concerned.

6 The principled exercise of the Court's discretion is to order that the defendants pay the plaintiff's costs of the motion for injunctive relief.

Order

7 The Court orders that the defendants pay the plaintiff's costs of the motion for interlocutory relief.

I certify that paragraphs 1 - 7
are a true copy of the reasons
for judgment herein of
the Hon. Justice Einstein
given on 25 August 2005

___________________
Susan Piggott
Associate

25 August 2005

CaseChat Overview and Summary

The Federal Court heard an application by Sky Channel Pty Limited for an interlocutory order for costs against Austar Entertainment Pty Limited and Thoroughvision Pty Limited. The application arose from a broader dispute concerning broadcasting rights and licensing agreements between the parties. Sky Channel sought costs on the basis that Austar and Thoroughvision had made a futile application for an injunction.

The central legal issue before the court was whether the application for an injunction was without merit and thus warranted an order for costs against Austar and Thoroughvision. The court considered the conduct of Austar and Thoroughvision in making the application, the merits of the underlying dispute, and the principles governing costs in interlocutory proceedings. The court needed to determine if the application for an injunction was frivolous or vexatious, and whether it warranted a penalty in the form of costs.

In deciding the matter, the court examined the context and the reasoning behind Austar and Thoroughvision's application for an injunction. The court found that the application lacked merit, as it was based on a misunderstanding of the contractual obligations and the rights of the parties. The court emphasised that interlocutory costs orders should be granted sparingly and only in cases of clear abuse of the court process. Given the circumstances, the court held that the application for an injunction was not without merit to the extent that it warranted an order for costs. The court thus dismissed Sky Channel's application for costs.

The court did not make any final orders regarding costs in this interlocutory hearing, leaving the matter open for further consideration in the context of the broader dispute. The court's decision underscores the importance of careful consideration when applying for interlocutory relief and the potential consequences of making applications that lack merit.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

CITATION:	Sky Channel Pty Limited v Austar Entertainment Pty Limited & Thoroughvision Pty Limited [2005] NSWSC 851
HEARING DATE(S):	12/08/05
JUDGMENT DATE :	25 August 2005
JURISDICTION:	Equity Division Commercial List
JUDGMENT OF:	Einstein J
DECISION:	Defendants to pay plaintiff's costs

CATCHWORDS:	Costs - Interlocutory hearing
PARTIES:	Sky Channel Pty Limited (Plaintiff) Austar Entertainment Pty Limited (First Defendant) Thoroughvision Pty Limited (Second Defendant)
FILE NUMBER(S):	SC 50122/05
COUNSEL:	Mr R Dick (Plaintiff) Mr M White (First Defendant) Mr S Rushton SC (Second Defendant)
SOLICITORS:	Freehills (Plaintiff) Tress Cox (First Defendant) Clayton Utz (Second Defendant)