FEDERAL COURT OF AUSTRALIA
Young v Wyllie (No 2) [2010] FCA 616
Citation: Young v Wyllie (No 2) [2010] FCA 616 Parties: GARY YOUNG v GREGORY WYLLIE, VIDEO SPORTS PTY LTD, EX DVD PTY LTD [Previously Ezy DVD Pty Ltd] (in liquidation) ACN 094 555 674, JIM ZAVOS, PITSTOP BOOKSHOP PTY LTD, BARBARA ELIZABETH LYSTER, ATLANTIC VIDEO, CHAOS ENTERTAINMENT PTY LTD, ROBERT APPEL, STOMP PTY LTD, ANDREW JORGENSEN, SANITY MUSIC STORES PTY LTD, (NO THIRTEENTH RESPONDENT NAMED), GREG MILNE and DARREN ROBINSON TRADING AS MOVIE SEARCH DOT COM File number: ACD 41 of 2008 Judges: MOORE J Date of judgment: 17 June 2010 Catchwords: COSTS - consideration of appropriate costs order where unsuccessful application for summary judgment – factors relevant to Court's discretion – whether costs should be awarded on an indemnity basis – whether costs to be payable forthwith – consideration of costs capping Legislation: Federal Court Rules Orders 62 and 62A Cases cited: Airservices Australia v Jeppesen Sanderson Inc [2006] FCA 906
All Services Australia Pty Ltd v Telstra Corporation Ltd (2000) 171 ALR 330
Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225
Corcoran v Virgin Blue Airlines Pty Ltd [2008] FCA 864
Dibb v Avco Financial Services Ltd [2000] FCA 1785
Gersten v Minister for Immigration and Multicultural Affairs [2001] FCA 260
Hughes v Western Australian Cricket Association (Inc) (1986) ATPR 40-748
Life Airbag Company of Australia Pty Ltd v Life Airbag Company (New Zealand) Ltd [1998] FCA 545
McKellar v Container Management Services Limited [1999] FCA 1639
Rafferty v Time 2000 West Pty Ltd (ACN 127 893 270) (No 3) (2009) 257 ALR 503
Re Wilcox; Ex parte Venture Industries Pty Ltd (1996) 141 ALR 727
Ritter v Godfrey [1920] 2 KB 47
Woodlands v Permanent Trustee Company Limited (1995) 58 FCR 139Date of hearing: 17 June 2010 Date of last submissions: 20 April 2010 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 35 Counsel for the Applicant: The applicant appeared in person Counsel for the First and Second Respondents: C Champion Solicitor for the First and Second Respondents: Hazan Hollander Solicitors Counsel for the Fifth and Sixth Respondents: The fifth and sixth respondents appeared by telephone Solicitor for the Fifth and Sixth Respondents: Conal O'Toole Counsel for the Seventh Respondent: J McDonald Solicitor for the Seventh Respondent: Harris Freidman Hyde Page Counsel for the Eighth and Ninth Respondents The ninth respondent appeared by telephone Counsel for the Tenth, Eleventh, Twelfth and Fourteenth Respondents: S Gorry Solicitor for the Tenth, Eleventh, Twelfth and Fourteenth Respondents: Henry Davis York
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
ACD 41 of 2008
BETWEEN: GARY YOUNG
ApplicantAND: GREGORY WYLLIE
First RespondentVIDEO SPORTS PTY LTD
Second RespondentEX DVD PTY LTD [Previously Ezy DVD Pty Ltd] (In Liquidation) ACN 094 555 674
Third RespondentJIM ZAVOS
Fourth RespondentPITSTOP BOOKSHOP PTY LTD
Fifth RespondentBARBARA ELIZABETH LYSTER
Sixth RespondentATLANTIC VIDEO
Seventh RespondentCHAOS ENTERTAINMENT PTY LTD
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Details
- AGLC
- Young v Wyllie (No 2) [2010] FCA 616
- Case
- [2010] FCA 616
- Decision Date
CaseChat Overview and Summary
In the matter of Young v Wyllie (No 2), the Full Court of the Federal Court of Australia considered the issue of costs orders in a case where the applicant had instituted proceedings against multiple respondents. The applicant, Young, sought various forms of relief including damages for copyright infringement, relief under the Trade Practices Act, and an accounting of profits under the Copyright Act. Throughout the proceedings, Young made several amendments to his claims, leading to delays and increased costs. The court was tasked with determining whether the applicant was entitled to an order for costs against the respondents who had successfully defended against the application for summary judgment.
The central legal issue before the court was whether the applicant, having represented himself and filed a misconceived application for summary judgment, was liable for the costs of the respondents who had successfully defended against this application. The court considered whether the applicant's actions warranted the exercise of the court's discretion to award indemnity costs, particularly given the lack of success of the application and the incremental nature of the case. The court also had to balance the potential financial burden on the applicant against the risk of stifling the litigation if the costs order was too onerous.
The court concluded that the applicant's case had extremely limited prospects of success at a final hearing. Given the misconceived nature of the application for summary judgment and the delays and additional costs caused by the applicant's inexperience and multiple amendments to the claims, the court found it appropriate to exercise its discretion and order the applicant to pay the costs of the respondents who had defended the summary judgment application. The court acknowledged the unusual nature of such an order but reasoned that it might be more beneficial for the applicant to avoid the additional costs and expenses of a full trial. The court thus ordered the applicant to pay the costs of the respondents forthwith, noting that this might paradoxically be a better outcome for the applicant than proceeding to a costly trial.
The court made an order that the applicant, Young, pay the costs of the respondents who had successfully defended the application for summary judgment. This order was made to reflect the misconceived nature of the application and the delays and additional costs incurred due to the applicant's actions. The court emphasized that this was an unusual order but considered it necessary to address the inefficiencies and additional expenses caused by the applicant's conduct in the proceedings.
The central legal issue before the court was whether the applicant, having represented himself and filed a misconceived application for summary judgment, was liable for the costs of the respondents who had successfully defended against this application. The court considered whether the applicant's actions warranted the exercise of the court's discretion to award indemnity costs, particularly given the lack of success of the application and the incremental nature of the case. The court also had to balance the potential financial burden on the applicant against the risk of stifling the litigation if the costs order was too onerous.
The court concluded that the applicant's case had extremely limited prospects of success at a final hearing. Given the misconceived nature of the application for summary judgment and the delays and additional costs caused by the applicant's inexperience and multiple amendments to the claims, the court found it appropriate to exercise its discretion and order the applicant to pay the costs of the respondents who had defended the summary judgment application. The court acknowledged the unusual nature of such an order but reasoned that it might be more beneficial for the applicant to avoid the additional costs and expenses of a full trial. The court thus ordered the applicant to pay the costs of the respondents forthwith, noting that this might paradoxically be a better outcome for the applicant than proceeding to a costly trial.
The court made an order that the applicant, Young, pay the costs of the respondents who had successfully defended the application for summary judgment. This order was made to reflect the misconceived nature of the application and the delays and additional costs incurred due to the applicant's actions. The court emphasized that this was an unusual order but considered it necessary to address the inefficiencies and additional expenses caused by the applicant's conduct in the proceedings.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
More recently a Full Court said in Gersten v Minister for Immigration and Multicultural Affairs [2001] FCA 260 at [19]:If an action is commenced when proper advice would indicate that the proceeding has no prospect of success, a discretion to award indemnity costs is ordinarily enlivened. Similarly, if a party who has no defence to a claim of right, refuses to acknowledge that right and either obstinately, or for an ulterior purpose, obliges the claimant to commence proceedings to enforce that right, that circumstance may attract the exercise of a discretion to award indemnity costs against that party.Conclusion on costs orders The applicant filed his application and statement of claim on 6 November 2008 instituting proceedings against nine respondents. Four months later an amended application and statement of claim was filed on 3 March 2009 which named the first to twelfth respondents and the fourteenth and fifteenth respondents but omitted the thirteenth respondent. The difference between the original application and amended application was the inclusion of the second respondent and in [10] of the details of claim the phrase "offering for sale". Relief sought in these applications was: 1 For an Accounting and Damages2 For Copyright Piracy and Damages.Six weeks after the filing of the amended application and statement of claim, on 16 April 2009, the applicant filed a further amended application and statement of claim. The details of the claim are the same as those in the amended statement of claim. Relief sought in the further amended application was expanded to include:Suit for Violation of section 52 Trade Practices Act 1976 violation of section 53 Trade Practices Act 1976 violation of section 103 Copyright Act 1968 for an accounting of profits s 115(2) Copyright Act 1968. Defences to the further amended statement of claim were filed by the respondents between 9 June 2009 and 22 June 2009. On 23 June 2009 I ordered that mediation be conducted by a Registrar or Deputy Registrar of this Court. The mediation held on 29 July 2009 was unsuccessful. On 26 August 2009, before the respondents' affidavits were filed, the applicant filed a notice of motion requesting summary judgment. At a directions hearing on 13 October 2009 I observed for the benefit of the applicant problems associated with him prosecuting an application under 31A. Despite observations I have made about the risks inherent in the applicant representing himself, he has insisted on doing so and there is little doubt that his inexperience has led to additional and unnecessary costs, as well as delays. In the circumstance of this case, it is appropriate to order that the applicant pay the costs of the respondents who have incurred costs (the respondents other than the third, fourth and fifteenth respondents) of the unsuccessful application for summary judgment. The applicant has failed in obtaining summary judgment. Costs should follow the event in relation to this application. I also consider that those respondents should have the benefit of an order under O 62 r 2. That is, I propose to order that those costs should be payable forthwith. I acknowledge that this is an unusual order to make. However, this application for summary judgment, in substance, was misconceived and was pursued by the applicant against a background in which, in the proceedings more generally, the nature of his case has emerged only incrementally with the attendant delays and costs. I also acknowledge that the burden of making such an order may, for the applicant, be a considerable one. It is conceivable it may stifle the litigation. My present view is that, having regard to the discussion in my reasons for judgment of 30 March 2010, the applicant's case has extremely limited prospects of succeeding at a final hearing. If the costs burden imposed by the order stifles the litigation, then paradoxically that may be a better outcome for the applicant than the matter going to trial. A full trial with, if appropriate, discovery (an inherently costly process itself) and, at trial, the cross examination of witnesses would be a materially more expensive exercise. The respondents, if successful, would almost inevitably secure a costs order in their favour.
Ratio Decidendi
Legal Principle Established
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