Universal Music Australia Pty Ltd v Cooper - [2004] FCA 78

FEDERAL COURT OF AUSTRALIA
Universal Music Australia Pty Ltd v Cooper [2004] FCA 78
PRACTICE AND PROCEDURE - addition and removal of parties - applications for joinder and removal of parties in proceeding for copyright infringement and misleading and deceptive conduct - (CTH) Federal Court Rules O 6, rr 8 and 9 - rules confer discretion - test to be applied - where claim so obviously untenable it cannot possibly succeed - case against party seeking to be removed not manifestly untenable - company officers and employees - personal liability - test - "authorised, procured or directed" - case against parties to be joined not manifestly untenable - application for removal dismissed - application for joinder granted.
Copyright Act 1968 (Cth)
Trade Practices Act 1974 (Cth)
Fair Trading Act 1987(NSW)
Review Australia Pty Limited v Redberry Enterprises Pty Limited [2003] FCA 1009 cited
Tytel Pty Limited v Australian Telecom Commission (1988) 11 IPR 223 cited
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 applied
Lotus Development Corporation v Mayne Nicholas Limited (1991) 100 ALR 167 refererd to
ICI Australia Operations Pty Limited v Trade Practices Commission (1992) 110 ALR 47 distinguished
Microsoft Corporation v Auschina Polaris Pty Limited (1996) 71 FCR 231 discussed
Sony Music Entertainment (Aust) Limited v CEL Music Pty Limited (in liq) [2002] FCA 193 cited
Henley Arch Pty Limited v Clarendon Homes (Aust) Pty Limited (1998) 41 IPR 443 cited
UNIVERSAL MUSIC AUSTRALIA PTY LIMITED, EMI MUSIC AUSTRALIA PTY LIMITED, SONY MUSIC ENTERTAINMENT (AUSTRALIA) LIMITED, WARNER MUSIC AUSTRALIA PTY LIMITED, BMG AUSTRALIA LIMITED, FESTIVAL RECORDS PTY LIMITED AND MUSHROOM RECORDS PTY LIMITED TRADING AS FESTIVAL MUSHROOM RECORDS v
STEPHEN COOPER, E-TALK COMMUNICATIONS PTY LIMITED TRADING AS COMCEN INTERNET SERVICES, COM-CEN PTY LIMITED (SUBJECT TO DEED OF COMPANY ARRANGEMENT)
N1551 OF 2003
TAMBERLIN J
13 FEBRUARY 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N1551 OF 2003

BETWEEN:

UNIVERSAL MUSIC AUSTRALIA PTY LIMITED
(ACN 000 158 592)
FIRST APPLICANT

EMI MUSIC AUSTRALIA PTY LIMITED
(ACN 000 070 235)
SECOND APPLICANT

SONY MUSIC ENTERTAINMENT (AUSTRALIA) LIMITED
(ACN 000 033 581)
THIRD APPLICANT

WARNER MUSIC AUSTRALIA PTY LIMITED
(ACN 000 815 565)
FOURTH APPLICANT

BMG AUSTRALIA LIMITED
(ACN 004 157 564)
FIFTH APPLICANT

FESTIVAL RECORDS PTY LIMITED (ACN 000 111 197) AND MUSHROOM RECORDS PTY LIMITED (ACN 005 594 043) TRADING AS FESTIVAL MUSHROOM RECORDS
SIXTH APPLICANT

AND:

STEPHEN COOPER
FIRST RESPONDENT

E-TALK COMMUNICATIONS PTY LIMITED TRADING AS COMCEN INTERNET SERVICES
(ACN 097 058 994)
SECOND RESPONDENT

COM-CEN PTY LIMITED (SUBJECT TO DEED OF COMPANY ARRANGEMENT)
(ACN 061 300 169)
THIRD RESPONDENT

JUDGE:

TAMBERLIN J

DATE OF ORDER:

13 FEBRUARY 2004

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

The application for removal of the second respondent, E-Talk, is dismissed with costs.

The application for joinder of Messrs Bal and Takoushis is granted with costs.

The parties are directed to bring in Short Minutes of Order within the next fourteen days dealing with appropriate directions for the further conduct…

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.

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Details

Case: [2004] FCA 78
Decision Date: 13 FEBRUARY 2004

CaseChat Overview and Summary

Universal Music Australia Pty Ltd, an Australian record label, brought proceedings against three respondents: Cooper, E-Talk, and Messrs Bal and Takoushis, who were alleged to have infringed copyright through the distribution of music files over the internet. The case was heard in the Federal Court of Australia. The primary issue before the Court was whether the respondents were liable for copyright infringement by distributing music files without permission. A secondary issue was the appropriate joinder of the additional respondents, Messrs Bal and Takoushis.

The Court held that the application for the removal of E-Talk as a respondent was dismissed. The Court found that E-Talk was a party to the proceedings and had the right to be heard. In contrast, the application for the joinder of Messrs Bal and Takoushis was granted. The Court found that the joinder was necessary to ensure the complete and expeditious resolution of the case. The Court ordered that the parties bring in Short Minutes of Order within fourteen days to deal with appropriate directions for the further conduct of the matter.

Orders

Orders of the court

1. The application for removal of the second respondent, E-Talk, is dismissed with costs.

2. The application for joinder of Messrs Bal and Takoushis is granted with costs.

3. The parties are directed to bring in Short Minutes of Order within the next fourteen days dealing with appropriate directions for the further conduct of the matter.

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

TAMBERLIN J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: TAMBERLIN J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N1551 OF 2003

BETWEEN:	UNIVERSAL MUSIC AUSTRALIA PTY LIMITED (ACN 000 158 592) FIRST APPLICANT EMI MUSIC AUSTRALIA PTY LIMITED (ACN 000 070 235) SECOND APPLICANT SONY MUSIC ENTERTAINMENT (AUSTRALIA) LIMITED (ACN 000 033 581) THIRD APPLICANT WARNER MUSIC AUSTRALIA PTY LIMITED (ACN 000 815 565) FOURTH APPLICANT BMG AUSTRALIA LIMITED (ACN 004 157 564) FIFTH APPLICANT FESTIVAL RECORDS PTY LIMITED (ACN 000 111 197) AND MUSHROOM RECORDS PTY LIMITED (ACN 005 594 043) TRADING AS FESTIVAL MUSHROOM RECORDS SIXTH APPLICANT
AND:	STEPHEN COOPER FIRST RESPONDENT E-TALK COMMUNICATIONS PTY LIMITED TRADING AS COMCEN INTERNET SERVICES (ACN 097 058 994) SECOND RESPONDENT COM-CEN PTY LIMITED (SUBJECT TO DEED OF COMPANY ARRANGEMENT) (ACN 061 300 169) THIRD RESPONDENT
JUDGE:	TAMBERLIN J
DATE OF ORDER:	13 FEBRUARY 2004
WHERE MADE:	SYDNEY