Telmak Teleproducts Australia Pty Ltd v Bond International Pty Ltd

[1985] FCA 318

Re: TELMAK TELEPRODUCTS AUSTRALIA PTY LIMITED; GULF ADVERTISING INC and GLOBAL
TOOL CORPORATION
And: BOND INTERNATIONAL PTY LIMITED; COUNTRY TELEVISION SERVICES LIMITED;
TOTAL MEDIA (INC) PTY LIMITED
No. G.345 of 1984
Trade Practices
(1985) ATPR para 40 - 590

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Wilcox J.

CATCHWORDS

TRADE PRACTICES - Exhibition of television commercial for combination of products similar to those advertised by applicant - Possibility of viewers believing respondent's offer was made on behalf of applicant - Whether substantial question to be tried as to misleading or deceptive conduct by respondent.

Parkdale Custom Built Furniture Pty Limited v Puxu Pty Limited (1982) 149 C.L.R. 191 applied.

COPYRIGHT - Test to be adopted in relation to sufficiency of case to support grant of interlocutory injunction - What dealings constitute infringement of copyright in film - Infringement of copyright in film script - Originality of film script - What constitutes reproduction of film script.

Australian Coarse Grain Pool Pty Limited v Barley Marketing Board of Queensland (1982) 46 A.L.R. 398, Tableland Peanuts Pty Limited v Peanut Marketing Board (1984) 52 A.L.R. 651, A v Hayden (1984) 56 A.L.R. 73, Epitoma Pty Limited v Australasian Meat Industry Employee's Union (1984) 54 A.L.R. 730, Apple Computer Inc v Computer Edge Pty Limited (1984) 53 A.L.R. 225, Ladbroke (Football) Limited v William Hill (Football) Limited (1964) 1 W.L.R. 273 applied. Appleton Papers Inc v Tomasetti Paper Pty Limited (1983) 50 A.L.R. 426, Zeccola v Universal City Studios Inc (1982) 46 A.L.R. 189, Harman Pictures N.V. v Osborne (1967) 1 W.L.R. 723 referred to.

Trade Practices Act 1974 s. 52

Copyright Act 1968 ss. 10,31,32,36,86,94,98,101

Copyright (International Protection) Regulations r. 4

HEARING

SYDNEY
#DATE 12:7:1985

ORDER

1. The motion for an interlocutory injunction made by Notice of Motion dated 25 June 1985 be dismissed.

2. The applicants pay the costs of the first respondent in respect of the motion.

3. There be no order as to the costs of the second respondent in respect of the motion.

4. The exhibits tendered in relation to the motion be returned at the expiration of twenty-one (21) days unless in the meantime a Notice of Appeal against any of these orders has been filed.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

This is an interlocutory application concerning rival television advertisements; each designed to persuade viewers to purchase by telephone order "three in one" packs containing power screwdriver, a hand nail-driver and a set of seven nut wrenches. Each of the components of the packs has been marketed in Australia, as individual items and through retail stores, for many years. However, in or before the year 1983, the idea was conceived, apparently in the United States, of selling the three components in combination. Mr Phillip Felstead, an American film producer and writer, wrote a script for an advertisement intended to be shown on American television. In June 1983 he made a television advertisement based on the script he had written. The film was referred to as "Powerdriver", no doubt in recognition of the fact that the main emphasis of the film was upon the virtues of the power screwdriver. According to the recitals in a deed of assignment executed by him in April 1985, Mr Felstead wrote the script and made the film on behalf of Gulf Advertising Inc., a Florida corporation and the second applicant in these proceedings. Gulf Advertising, it would appear, acted on behalf of Global Tool Corporation, also a Florida corporation and the third applicant. In August 1983 Gulf Advertising assigned to Global Tool its right, title and interest in and to the copyright of "Powerdriver" and that latter company has become the registered copyright owner of the film pursuant to title 17 of the United States (Copyright) Code. There being no submission to the contrary, I assume for the purposes of this application that the various steps taken in the United States were effective under the law of that country to vest in Global Tool the ownership of the copyright in the script and the film. Upon that assumption Global Tool is entitled to enforce rights under the Copyright Act 1963 in the same manner as if the script and the film had been made and first published in this country: see reg. 4 of the Copyright (International Protection) Regulations.

On 1 September 1983 Telmak Teleproducts Australia Pty Limited, the first applicant, made an agreement with Gulf Advertising and Global Tool whereby it was granted the right to use in Australia certain advertising material, including the "Powerdriver" advertisement. Telmak was to retain ownership of the copyright of any television advertisements produced from the material supplied from America. Telmak received material relating to "Powerdriver" and decided to market, by direct response advertising, a similar package in Australia. A television advertisement was produced by Telmak's production house. The voice-over script was almost identical to the American script. It was delivered in a similar urgent manner, the Australian version being louder and even more breathless than the American. The visual images were re-shot in Australia but they were in substance the same as those contained in the American version. The Australian version was completed in about February 1984 and apparently first put to air by Telmak shortly afterwards. Since that time it has been shown, and it continues to be shown, widely on Australian commercial television channels. It has, apparently, been successful in exciting considerable interest in the "three in one" pack, which has sold well.

In September or early October 1984 Telmak became aware that Bond International Pty Limited, the first respondent, and Total Media (Inc.) Pty Limited, the third respondent, had caused to be shown on CBN8 Orange - - a station operated by the second respondent, Country Television Services Limited - - an advertisement for the same combination of tools. On 3 October 1984 Telmak filed an Application in this Court, the principal proceeding, claiming, inter alia, injunctive relief. The company sought interlocutory relief but that application was disposed of by the giving of an undertaking, on that same day, to the Court on behalf of the first respondent that it would not until further order publish by broadcasting on television in Orange the particular advertisement of which Telmak complained. Although the undertaking was limited to Orange, the solicitors for Telmak made it clear that their client would take similar action in relation to the use of the advertisement on any other station and, in the event, the respondents have apparently not used that advertisement since that time.

However, Bond International was not disposed to abandon its attempt to market by television the package of tools. Mr B D G Valsinger, joint managing director of Bond International, set about the production of a new advertisement. He changed the name of the tools. The first advertisement had apparently adopted the applicants' nomenclature: "Power Driver", "Nut Driver" and "Nail Driver". The tools were re-dubbed "Supa Drill", "Nut Wrench" and "Supa Nail". The previous script was re-written and the previous film re-cut. Mr Valsinger has stated in his affidavit that he gave instructions to his advertising agents that the new advertisement was "to be as different as possible to how it was". The film was finally completed. It was recently used on television, giving rise to this further interlocutory application. In the meantime - - no doubt in an attempt to avoid any difficulty in relying upon copyright in the American script and film, cf Enzed Holdings Limited v Wynthea Pty Limited & Ors. (1984) 57 A.L.R. 167 at pp. 179-181 - - Gulf Advertising and Global Tool have been added as applicants.

The application for interlocutory relief is made only against Bond International. I shall use the words "the respondent" to refer to this company. The applicants put their claim for relief upon two bases. First, they rely upon s. 52 of the Trade Practices Act 1974, contending that the respondent, in exhibiting its new advertisement, is - - in trade or commerce - - engaging in conduct that is misleading or deceptive or is likely to mislead or deceive. Secondly, they say that the exhibition of the film constitutes an infringement of the copyright in one or more of the American script, the American film, Telmak's Australian script or Telmak's Australian film.

The first matter for consideration is the degree of probability of success at the trial necessary to be shown by the applicants, or any of them, in relation to the matters in respect of which this interlocutory injunction is sought. During recent years, and following the decision of the House of Lords in American Cyanamid Co v Ethicon Limited (1975) A.C. 396, Australian courts have increasingly posed the question whether there is "a serious question to be tried". This test has been adopted in three reported decisions of Justices of the High Court of Australia: see Australian Coarse Grain Pool Pty Limited v Barley Marketing Board of Queensland (1982) 46 A.L.R. 398 (Gibbs C.J.), Tableland Peanuts Pty Limited v Peanut Marketing Board (1984) 52 A.L.R. 651 (Brennan J.) and A v Hayden (1984) 56 A.L.R. 73 (Dawson J.). The test was adopted by a Full Court of this Court in Epitoma Pty Limited v Australasian Meat Industry Employee's Union (1984) 54 A.L.R. 730. It is the test appropriate to be adopted in relation to so much of the applicants' claim as depends upon s. 52 of the Trade Practices Act.

In relation to the claim based upon alleged infringement of copyright the position is less clear. The formula "prima facie case" was used in Beecham Group Limited v Bristol Laboratories Pty Limited (1968) 118 C.L.R. 618, an intellectual property case. Having regard to that circumstance, the question arises whether, in the absence of a decision of the Full High Court applying to such a case the "substantial question to be tried" test, the courts should continue to apply the formula adopted in Beecham Group in intellectual property cases. The question was considered in Appleton Papers Inc v Tomasetti Paper Pty Limited (1983) 50 A.L.R. 428. In that case McLelland J. summarised the decisions in which Beecham Group had been interpreted. He pointed out at p. 434 that the New South Wales Court of Appeal, in Shercliff v Engadine Acceptance Corporation (1978) 1 N.S.W.L.R. 729, had understood Beecham Group as requiring demonstration by the applicant for an interlocutory injunction of such degree of probability of success as the court thinks sufficient, in the particular case, to warrant preservation of the status quo. He referred also to the similar interpretation of Beecham Group by the Full Supreme Court of Victoria in Magna Alloys & Research Pty Limited v Coffey (1981) V.R. 23. One could now add a reference to what was said by Dawson J. in Hayden at pp. 77-79. As the analysis of, and cases cited by, McLelland J. make clear there is, in the end, likely to be little or no difference in result, in any particular case, according to whether the court adopts the approach enunciated in Beecham Group, as explained in the later decisions, or whether it applies the test of serious question to be tried. But there is nothing in the recent decisions to suggest that, if there be a difference, the Beecham Group test is to be applied to cases of intellectual copyright whilst, in other cases, the issue is whether there is a serious question to be tried. In my view, having regard to the recent authorities, the better view is that the latter approach should be adopted in relation to all types of case but, of course, bearing in mind that the primary duty of the court is to so exercise its discretion as to do justice between the parties and that the formula is not to be construed or applied in a rigid manner or as if it were a phrase used in an Act of Parliament: see Appleton at p. 435, Hayden at p. 79.

Insofar as this application relies upon s. 52 of the Trade Practices Act, it may be shortly disposed of. No case has been made out justifying the grant of an interlocutory injunction in respect of the showing of the respondent's new advertisement. I do not think that there is a serious question to be tried in relation to the complaint that the showing of the film constitutes misleading or deceptive conduct. In submitting to that effect counsel for the applicants pointed to the fact that, although the components of the respective "three in one" packages were each individually available, the respondent had chosen to select the same three items for sale in one line, advertising its package by similar means and to a similar television market. Counsel accepted that the mere presentation to the market of a similar product was insufficient to constitute misleading or deceptive conduct: see Parkdale Custom Built Furniture Pty Limited v Puxu Pty Limited (1982) 149 C.L.R. 191. He contended, however, that the choice by the respondent of a precisely similar combination would be likely to mislead viewers into the belief that the offer being made in the respondent's advertisement was an offer being made on behalf of Telmak, whose advertisement had been shown on television over a considerable period and had become well known.

I do not think that this contention can survive a consideration of the film and of the script upon which it is based. The respondent's advertisement is different to that of the applicants both in form - - as I shall spell out later - - and in the nomenclature ascribed to the tools which it advertises. The first mention in the voice-over script of the power screwdriver is in these terms: "So Bond International introduce a fantastic screwdriver invention - - the amazing Supa Drill". The statement is true only in the sense that the implement was not previously known as a "Supa Drill" but it clearly proclaims its distinction from all that had gone before. Shortly afterwards the screwdriver is referred to as "Bond Supa Drill". It is possible that a viewer, who had not paid particular attention to the content of the Telmak advertisement, would, on first seeing the Bond advertisement, erroneously think that he or she had seen that advertisement before. But I do not think that anyone who had a clear recollection of the Telmak advertisement, or who identified the Telmak advertisement with a distributor other than Bond International, would think that the Bond International advertisement was being exhibited on behalf of Telmak. The mere possibility of confusion being suffered by a person who has not carefully noted the "labels" on the advertisements is not enough: see Parkdale. And, as that decision also makes plain, it makes no difference that one distributor has copied the product of the other.

The question whether there is a serious question to be tried in relation to the copyright claim is more complex. It is necessary to distinguish between a claim for infringement of the copyright in one or both of the films themselves, on the one hand, and a claim for infringement of the copyright in one or both of the scripts on the other. Each of the films falls within the definition in s. 10 of the Copyright Act 1968 of the term "cinematograph film". That definition defines the term as meaning "the aggregate of the visual images embodied in an article or thing so as to be capable by the use of that article or thing of being shown as a moving picture or of being embodied in another article or thing by the use of which it can be so shown" and as including "the aggregate of the sounds embodied in a sound-track associated with such visual images". A cinematograph film is not a "work" within the meaning of the Act. By s. 10 a "work" is defined as "a literary, dramatic, musical or artistic work". The definitions of each of those four terms in s. 10 are such as not to include a cinematograph film. It is noteworthy that "dramatic work", which might most easily be thought to include a film, expressly excludes a cinematograph film, "as distinct from the scenario or script for a cinematograph film". It follows that a cinematograph film falls within the description of "subject-matter other than works" and, as such, is governed by Part IV of the Act. Section 86, which is in Part IV, provides:

"86. For the purposes of this Act, unless the contrary intention appears, copyright, in relation to a cinematograph film, is the exclusive right to do all or any of the following acts:

(a) to make a copy of the film;

(b) to cause the film, in so far as it consists of visual images, to be seen in public;

(c) to broadcast the film;

(d) to cause the film to be transmitted to subscribers to a diffusion service."

Section 90 of the Act specifies the cinematograph films in which copyright subsists. This provision has to be read subject to any relevant extension of its operation pursuant to the Copyright (International Protection) Regulations. Section 94 specifies the duration of copyright in a film. Section 98 deals with ownership of the copyright. Section 101 is important because it specifies what constitutes an infringement of a copyright in a film, inter alios. Subsection (1) provides that, subject to the Act, "a copyright subsisting by virtue of this Part is infringed by a person who, not being the owner of the copyright, and without the licence of the owner of the copyright, does in Australia, or authorizes the doing in Australia of, any act comprised in the copyright". Subsections (3) and (4) and ss. 102 and 103 deal with some particular situations but they are not relevant to the present case. The question is whether there is, in relation to either film, an act which falls within any of the categories of dealing ordinarily reserved under s. 86 to the copyright holder. Only if there is such an act will there have been an infringement of the copyright in either of the films themselves.

I think that it is clear that this question must be answered in the negative. The respondent's film, the subject of this application, was shot and sound recorded by its own agents. Whatever the script of the film may have owed to the films of the applicants, the respondent did not make a "copy" of either of the applicants' films. The noun "copy" is defined in s. 10 of the Act, in relation to a film, as meaning "any article or thing in which the visual images or sounds comprising the film are embodied". The respondent did not reproduce the particular visual images and sounds which together make up the cinematograph films to which the applicants hold the copyright. It did not cause the applicants' films, or either of them, to be seen in public, to be broadcast or to be transmitted to subscribers of a diffusion service. It did not deal with the applicants' films, that is the relevant visual images and sounds, in any way. There was no act falling within the categories of dealings specified by s. 86 and, therefore, no infringement within the meaning of s. 101.

The view I have expressed as to the proper approach to the question whether the making of the respondent's film constitutes an infringement in the copyright of the applicants' films is referred to by the members of a Full Court of this Court in Zeccola v Universal City Studios Inc (1982) 46 A.L.R. 189 at pp. 193, 195-196. In that case it was not necessary to determine its correctness. I note, however, that it accords with the opinion expressed in Lahore "Intellectual Property Law in Australia, Copyright" (1977) at para. 1014 which - - I think correctly - - states that "the reference is to the making of the material substance embodying the sounds or visual images previously embodied in another article or thing.

However, the applicants put their case on an alternative basis. They say that, even if the making of the respondent's film did not constitute an infringement of the copyright in either of their films, it yet constituted a breach of their copyright in the script upon which the films were based. It is clear that a film may infringe the copyright of another person in a film script, even though the infringer has not copied the visual images or the sounds of the film itself. Section 31 of the Copyright Act, which relates to copyright in original literary, dramatic, musical and artistic works, confers upon the holder of the copyright in such a work the exclusive right, inter alia, "to reproduce the work in any material form" and "to make an adaptation of the work". The creation of a film from a film script would appear to be both a reproduction of the work in a material form and an adaptation of the work. Section 36 provides that the copyright in a literary, dramatic, musical or artistic work is infringed by a person who, not being the owner of the copyright or licensee of the owner of the copyright, does or authorizes the doing of any act comprised in the copyright.

The respondent objected that the applicants have no copyright in the script for the Australian film since there was no element of originality in its production; it was simply copied, with only insignificant changes, from the American script. Those changes consist of the omission in the Australian script of the words "foolproof" in relation to the power screwdriver, the substitution of "for" for "with", the substitution of "laminex" for "formica" and "goes in" for "sucks in", the omission of the word "the" before "angle", the substitution of "from" for "here's" naildriver and "drive" for "drill", the addition of "old" before "hammer" and the substitution of "now fixed panelling" for "fix panelling". The price has been changed - - $19.99 in the American version, $24.99 in Australia - - and there is an addition of mail order information at the end of the Australian version. The respondent pointed out that the script - - as distinct from the film - - was a "literary work" or a "dramatic work" and that s. 32 accords copyright protection only to an original literary or dramatic work. Counsel referred to various authorities containing discussion as to the requirements of originality in this context: Walter v Lane (1900) A.C. 539, Sands and MacDougall Pty Limited v Robinson (1917) 23 C.L.R. 49, University of London Press Limited v University Tutorial Press Limited (1916) 2 Ch. 601, MacMillan & Co Limited v Cooper (1923) 40 T.L.R. 186, Victorian Park Racing and Recreational Grounds Co Limited v Taylor (1937) 58 C.L.R. 479, Ladbroke (Football) Limited v William Hill (Football) Limited (1964) 1 W.L.R. 273 and Apple Computer Inc v Computer Edge Pty Limited (1984) 53 A.L.R. 225. It is enough, for present purposes, to refer to the summary of the principles emerging from those cases which was set out by Lockhart J. at p. 259 of his judgment in Apple Computer:

"'Originality' means that the author's own skill and labour must be involved, though the degree of such skill and labour required is slight: . . . Some original result must be produced. It is not necessary that new or inventive ideas be contributed by the author, but the work must be more than a copy of other material: . . . In deciding whether a work is original it is wrong to start by considering individual parts of it apart from the whole because many works (eg compilations) have nothing original in their parts, but the total may be original. When an author applies his own original skill and labour to existing material a new work results . . ."

It cannot, I think, be even seriously argued that there has been any injection of author's skill and labour in the production of the Australian script. At most there has been a modest re-edit of the American script. The Australian script, lacking originality, cannot itself be the subject of copyright protection.

This leaves the question whether there is a substantial question that there has been an infringement by the respondent of the copyright of Global Tool in the American script. This script constitutes an original literary or dramatic work, within the meaning of those terms in copyright law. Even in a case where a film is not itself copied the reproduction in another film of the script upon which the first film is based may constitute an infringement of the copyright in that script: see Zeccola at pp. 193, 196. It has often been pointed out that the function of copyright law is not to protect ideas but rather the form in which they are expressed: see Hollinrake v Truswell (1894) 3 Ch. 420 at pp. 424, 426-427; Blackie & Sons Limited v Lothian Book Publishing Co Pty Limited (1921) 29 C.L.R. 396 at p. 400. What constitutes a reproduction infringing copyright is a question of fact and, very often, of degree. The principles for determining whether there has been an infringing reproduction were discussed by Lord Reid in Ladbroke v William Hill at pp. 276-277:

"Broadly, reproduction means copying, and does not include cases where an author or compiler produces a substantially similar result by independent work without copying. And, if he does copy, the question whether he has copied a substantial part depends much more on the quality than on the quantity of what he has taken. One test may be whether the part which he has taken is novel or striking, or is merely a commonplace arrangement of ordinary words or well-known data. So it may sometimes be a convenient short cut to ask whether the part taken could by itself be the subject of copyright. But, in my view, that is only a short cut, and the more correct approach is first to determine whether the plaintiffs' work as a whole is 'original' and protected by copyright, and then to inquire whether the part taken by the defendant is substantial.

A wrong result can easily be reached if one begins by dissecting the plaintiffs' work and asking, could section A be the subject of copyright if it stood by itself, could section B be protected if it stood by itself, and so on. To my mind, it does not follow that, because the fragments taken separately would not be copyright, therefore the whole cannot be. Indeed, it has often been recognised that if sufficient skill and judgment have been exercised in devising the arrangements of the whole work, that can be an important or even decisive element in deciding whether the work as a whole is protected by copyright."

In relation to the present question it is necessary also to bear in mind the difference between ideas on the one hand and situations and incidents on the other; a point made by Goff J. in Harman Pictures N.V. v Osborne (1967) 1 W.L.R. 723 at p.728:

". . . there is a distinction between ideas (which are not copyright) and situations and incidents which may be: see per Swinfen Eady L.J. in Rees v Melville: (1914) MacG.Cop.Cas. 168,:

'In order to constitute an infringement it was not necessary that the words of the dialogue should be the same; the situations and incidents, the mode in which the ideas were worked out and presented might constitute a material portion of the whole play, and the court must have regard to the dramatic value and importance of what if anything was taken, even although the portion might in fact be small and the actual language not copied. On the other hand, the fundamental idea of two plays might be the same, but if worked out separately and on independent lines they might be so different as to bear no real resemblance to one another.'

One must, however, be careful not to jump to the conclusion that there has been copying merely because of similarity of stock incidents, or of incidents which are to be found in historical, semi-historical and fictional literature about characters in history, . . ."

There is, I think, little doubt that the first applicant's advertisement inspired the decision of the respondent to embark upon television advertising of the same "three in one" package. Although direct response selling is commonplace, the decision to urge viewers immediately to ring a particular telephone number may also have owed something to the apparent successful use by Telmak of this technique. I think that it is also likely that the opening sequence in the respondent's advertisement, featuring a heavily bandaged home "handyman", was an extrapolation of the more subtle incident in an early sequence of the Telmak film in which the man shown hammering a screw winces from an accidental blow. But that is as far as the "copying" extends. Given the fact that both advertisements extol the utility of the same three products, there must inevitably be some similarity between their respective images. The material in the respondent's advertisement is no more than a "commonplace arrangement" - - to plagiarise Lord Reid - - of the ordinary features of those products. Any advertiser of those three products would be likely to use much the same images and descriptive soundtrack. There are significant differences between the respondent's advertisement and that of the first applicant. The Bond advertisement is considerably shorter and it contains much less demonstration of, and information about, the power screwdriver. The visual images are different both in content and - - to the extent that they do cover the same ground - - in sequence. The names of the products, the person cast as "handyman" and the production sets are each different. Looking at each of these two advertisements as a whole, I find it impossible to characterize as substantial the indebtedness of the respondent's film to the applicant's film or to the American script upon which it was based. The resemblances, such as they are, depend mainly upon the fact that the advertisements are of the same high pressure genre and promote the same combination of products.

There may be cases in which there is a serious question to be tried even though the court, upon the material then before it, is unpersuaded that the applicant is likely to succeed: see Hayden at p. 78. That position may arise because the court expects that, at the trial, there will be additional evidence substantially strengthening the applicant's case. Conversely, where there is little or no possibility that the applicant's evidence will be strengthened at the trial, the court may require to be persuaded, upon the basis of the existing evidence, that the applicant has, at least, a significant prospect of success before holding that there exists a case, subject to considerations of convenience, to justify the granting of an interlocutory injunction. In the present case it is most unlikely that the evidence for the applicants on the critical issue, whether the respondent's film reproduces the applicants' American film script, can be improved at the trial. The concession made on behalf of the respondent that it had the Telkmak advertisement before it when it made its own film, means that the determination of that issue depends essentially upon a comparison between the script - - and the films which reproduce it - - and the respondent's film. All of that material is now before the Court. I do not think that it indicates that the applicants, or any of them, have a significant chance of success upon that critical issue, a chance sufficient, under the circumstances, to allow me to hold that there exists a substantial question to be tried, in respect of infringement of copyright. It follows that, without turning to matters of convenience, it is appropriate to dismiss the claim for interlocutory relief. The applicants must pay the costs of the first respondent incurred in relation to the motion. The second respondent was represented during the hearing of the motion by its solicitor. However, no order was sought against that respondent and it took no active part in the proceedings. There should be no order in respect of that respondent's costs of the motion.