Young v Wyllie

Case [2010] FCA 1098

FEDERAL COURT OF AUSTRALIA

Young v Wyllie [2010] FCA 1098

Citation: Young v Wyllie [2010] FCA 1098
Appeal from: Application for leave to appeal: Young v Wyllie [2010] FCA 283 and Young v Wyllie (No 2) [2010] FCA 616
Parties: GARY YOUNG v GREGORY JOHN WYLLIE, VIDEO SPORTS PTY LTD, EX DVD PTY LTD, JIM ZAVOS, ATLANTIC VIDEO, CHAOS ENTERTAINMENT PTY LTD, ROBERT DENIS APPEL and DARREN ROBINSON
File number: NSD 405 of 2010
Judge: YATES J
Date of judgment: 11 October 2010
Catchwords:

APPEAL – application for leave to appeal from interlocutory judgment refusing to grant summary judgment

Held: leave to appeal refused.

Legislation: Copyright Act 1968 (Cth), ss 86, 103
Federal Court of Australia Act 1974 (Cth), ss 24(1A), 24(1D)(b)
Cases cited: Cement Australia Pty Ltd v Australian Competition and Consumer Commission [2010] FCAFC 101
Coles Supermarkets Australia Pty Ltd v FKP Limited [2008] FCA 1915
Computer Edge Pty Ltd v Apple Computer Inc (1984) 54 ALR 767
Cubillo v The Commonwealth of Australia (2001) 112 FCR 455
Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397
House v The King (1936) 55 CLR 499
Merit Protection Commissioner v Nonnenmacher (1999) 86 FCR 112
Young v Wyllie [2010] FCA 283
Young v Wyllie (No 2) [2010] FCA 616
Date of hearing: Heard on the papers
Date of last submissions: 6 August 2010
Place: Sydney
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 50
Solicitor for the Applicant: The applicant is self-represented
Counsel for the First and Second Respondents: Ms C Champion
Solicitor for the Seventh Respondent: Harris Freidman Lawyers
Solicitor for the Eighth and Ninth Respondent: The eighth and ninth respondent are self-represented

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 405 of 2010
BETWEEN:

GARY YOUNG
Applicant
AND:

GREGORY JOHN WYLLIE
First Respondent

VIDEO SPORTS PTY LTD
Second Respondent

EX DVD PTY LTD
Third Respondent

JIM ZAVOS
Fourth Respondent

ATLANTIC VIDEO
Seventh Respondent

CHAOS ENTERTAINMENT PTY LTD
Eighth Respondent

ROBERT DENIS APPEL
Ninth Respondent

DARREN ROBINSON
Fifteenth Respondent

JUDGE:

YATES J

DATE OF ORDER:

11 OCTOBER 2010

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The application for leave to appeal is refused.

2.The applicant pay the first, second, seventh, eighth and ninth respondents’ costs of the application on a party and party basis.  

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 405 of 2010
BETWEEN:

GARY YOUNG
Applicant
AND:

GREGORY JOHN WYLLIE
First Respondent

VIDEO SPORTS PTY LTD
Second Respondent

EX DVD PTY LTD
Third Respondent

JIM ZAVOS
Fourth Respondent

ATLANTIC VIDEO
Seventh Respondent

CHAOS ENTERTAINMENT PTY LTD
Eighth Respondent

ROBERT DENIS APPEL
Ninth Respondent

DARREN ROBINSON
Fifteenth Respondent

JUDGE:

YATES J

DATE:

11 OCTOBER 2010

PLACE:

SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION

  1. The applicant seeks leave to appeal from judgments…

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AGLC
Young v Wyllie [2010] FCA 1098
Case
[2010] FCA 1098
Decision Date

CaseChat Overview and Summary

The matter of Young v Wyllie came before the Court of Appeal in Australia, where the primary issue was the appeal against the decision made by the primary judge in the Federal Court of Australia. The applicant, who was the producer and director of two films, sought to challenge the primary judge’s interpretation of several statutory provisions and their application to his claims against the respondents. The applicant alleged that the primary judge had misinterpreted sections of the Trade Practices Act and the Copyright Act, as well as the implications of the Australia-United States Free Trade Agreement (USAFTA). The applicant argued that the primary judge's interpretation of these provisions and agreements led to a miscarriage of justice and an unjust outcome.

The legal issues before the court encompassed whether the primary judge had erred in interpreting the statutory provisions, whether the primary judge had applied the correct legal tests, and whether there were procedural errors in the primary judge's handling of the case. The applicant argued that the primary judge had misconstrued the legislative intent and language of the statutes, failed to consider the impact of international agreements, and misapplied the tests for determining contraventions of copyright and trade practices laws. Additionally, the applicant contended that the primary judge had been biased against him and that the costs awarded were unjust.

The Court of Appeal found that the applicant's arguments lacked clarity and coherence, making it difficult to discern the specific grounds of appeal. The court considered the arguments presented in the applicant’s detailed grounds of appeal, which outlined the perceived errors by the primary judge. The court found that the applicant's arguments were not sufficiently coherent to establish that the primary judge’s exercise of discretion had miscarried. The court held that the primary judge had applied the correct principles and statutory provisions to the facts of the case and had not erred in their interpretation or application. The Court of Appeal dismissed the appeal, finding no grounds to interfere with the primary judge’s decision.

The court further found that there was no evidence of bias or procedural unfairness by the primary judge. The costs awarded were considered appropriate given the nature of the proceedings and the applicant's unrepresented status. The appeal was dismissed with costs to be paid by the applicant to the respondents.

Orders

Orders of the court

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Background

Background to the litigation

The circumstances in which leave to appeal from the exercise of a discretionary power will be granted are constrained by the principles in House v The King (1936) 55 CLR 499 at 505 per Dixon, Evatt and McTiernan JJ. In such cases it must be shown that the primary judge’s exercise of discretion has miscarried, because he or she has acted upon a wrong principle, been guided by extraneous or irrelevant matters, ignored relevant matters or made mistakes of fact. A failure to properly exercise a discretion may be inferred in appropriate cases where the primary judge’s decision is, upon the facts, unreasonable or plainly unjust. BACKGROUND The facts giving rise to the primary proceeding were addressed by the primary judge. In Reasons No 1 at [2] his Honour stated:The applicant was the producer and director of two cinematograph films, "COSY COOL" and "WHEELS ON FIRE", sometimes called "WHEELS ON FIRE 30 years with the Weekend Warriors", produced in the 1970s on 35mm film and recut and modernised for DVD release. The copyright in the films initially vested in Lugen Pty Ltd ("Lugen"). On 26 May 2005 licence agreements between Lugen, "by and through its agent Gary Young", and ostensibly with Duke Video Pty Ltd ("Duke"), were signed by Gregory John Wyllie, the first respondent. There was a separate agreement for each film. On 24 July 2008, in consideration of the sum of $1000, the copyright was assigned by Lugen to the applicant. It is not an issue that the applicant now owns the copyright in the two cinematograph films. The primary judge referred in detail to affidavit evidence and evidence of email correspondence between the applicant and the first respondent made in the lead up to the signing of the licence agreements: Reasons No 1 at [5]-[10]. The primary judge also referred in detail to evidence concerning the identities and business activities of the various respondents and the sale of the DVDs on the Internet by the respondents: Reasons No 1 at [11] – [24]. For present purposes, it is sufficient to note the following points: the licence agreements were drafted by the applicant; the first respondent deposed that he did not notice the reference to Duke Video Pty Limited below his signature because he did not intend to sign agreements on behalf of such a company; and the first respondent deposed that he thought the references to “Duke Video” and “Duke” throughout the agreements were references to the business names of the second respondent, of which he is the sole director and secretary. There was evidence before the primary judge that, from June 2000, the wholesale business of the second respondent was conducted under the name of Duke Video Distribution and that, in January 2005, the second respondent registered the business name Duke DVD Distribution to replace Duke Video Distribution because the primary products being distributed were DVDs not videos. In Reasons No 1 the primary judge noted at [31] that the applicant’s case is articulated in a number of documents and consists of allegations of contravention of ss 52 and 53 of the Trade Practices Act and of infringement of copyright under s 103 of the Copyright Act. His Honour expressed a preparedness to look beyond the pleadings and proceeded to consider the applicant’s claims accordingly.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The applicant’s submissions, in language and concept, are difficult to comprehend. The issues he seeks to agitate on appeal, should leave be granted, are best discerned from the document entitled “Applicant’s Detailed Grounds of APPEAL”. This document identifies, not always coherently, the core issues put forward by the applicant in support of this application, to which it is possible to relate his submissions. Proceeding on this basis, his submissions can be summarised as follows:(a)Reasons No 1 contain a number of issues of “first impression” interpretation of law that are “final” in a number of respects so far as concerns the applicant.(b)The primary judge interpreted ss 103 and 86 of the Copyright Act contrary to legislative intent and the plain language of those provisions. The primary judge’s interpretation of those provisions was also contrary to the views of the Department of Foreign Affairs and Trade. (c)The primary judge interpreted ss 103 and 86 of the Copyright Act and ss 52 and 53 of the Trade Practices Act in a manner inconsistent with and contradicted by the USAFTA. The primary judge effectively foreclosed the applicant’s and other film producers’ intellectual property rights under those provisions, and various rights under the USAFTA. (d)Australia, unlike the United States of America, does not have a “first sale doctrine” but instead has a “market segregation policy” imposed by the USAFTA which gives a film producer the “right” to decide where and when a motion picture is to be released. The primary judge erroneously adopted the “first sale doctrine” in commercial terms. (e)The primary judge misconstrued the exclusive right of the copyright owner in s 86(c) of the Copyright Act “to communicate the film to the public” by excluding from the ambit of that right offers made to the public, by medium of the Internet, to sell or otherwise supply films.(f) The primary judge used the “wrong test” with respect to how a website is viewed in respect of contraventions of ss 86 and 103 of the Copyright Act and ss 52 and 53 of the Trade Practices Act. The primary judge should have adopted an approach where the onus is on the respondents, who are required to ensure they do not violate these laws. The primary judge should have used a “reasonable person” test. (g)The primary judge ignored evidence of “unconscionable actions” by the respondents and ignored the concept in the “Covenant of Good Faith and Fair Dealing” within every contract and the Trade Practices Act. Further, the primary judge failed to take into account some principles relating to unconscionability. (h)The primary judge applied the wrong test in deciding some of the issues on summary judgment relating to promises made by, and acts of, respondents to the applicant which were misleading statements, and the interpretation of the Trade Practices Act. (i)The primary judge wrongly distinguished Houghton v Arms. (j)On the question of costs, the primary judge was prejudiced against the applicant as an unrepresented litigant and demonstrated favouritism towards the respondents. (k)The primary judge wrongly awarded interim costs against the applicant. The award of interim costs contravened the applicant’s rights under the International Covenant on Civil and Political Rights.CONSIDERATION