Indiana Publications (NZ) Ltd v Prasad - [2010] NZCA 111

IN THE COURT OF APPEAL OF NEW ZEALAND
CA515/2009
[2010] NZCA 111
BETWEENINDIANA PUBLICATIONS (NZ) LTD

First Appellant
ANDARIN LAL

Second Appellant
ANDVENKAT RAM

Third Appellant
ANDMAHESH PARERA

Fourth Appellant

ANDRAJENDRA PRASAD

Respondent

Hearing:15 March 2010

Court:Arnold, Panckhurst and Harrison JJ
Counsel:G M Harrison and AM Manuel for Appellants

N King for Respondent

Judgment:30 March 2010 at 11.30 am

JUDGMENT OF THE COURT

AThe appeal is allowed.
BWe strike the respondent’s proceedings against the appellants out as an abuse of process.
CThe respondent must pay the appellants costs for a standard appeal on a band A basis and usual disbursements.

REASONS OF THE COURT
(Given by Arnold J)
Introduction
[1]        The appellants appeal against the decision of Associate Judge Doogue dismissing their application for summary judgment in proceedings brought against them by the respondent, Mr Prasad, for breach of copyright.[1]
[1]      Prasad v Indiana Publications (NZ) Ltd HC Auckland CIV-2009-404-0856, 27 July 2009.
[2]        In his statement of claim, Mr Prasad alleges that he holds the copyright in a business directory named “Indian Bizz”, being its “exclusive creator, author and publisher”. He alleges that the appellants produced a rival publication in March 2003, which infringed his copyright, for which he seeks damages and interest totalling approximately $1.3 million.
[3]        To put the application for summary judgment in its proper setting, we must briefly outline the somewhat complicated background to this proceeding.
Background
[4]        In May 2003 Mr Prasad issued proceedings in the District Court against Mr Ravin Lal, who is the principal of Indiana Publications (NZ) Ltd (Indiana), the first appellant in the present appeal. Mr Prasad alleged that he held the copyright in Indian Bizz and that Mr Lal had breached it when he published a rival publication.
[5]        In July 2003 Mr Prasad filed an affidavit saying that his lawyer had advised him that:
(a)The correct plaintiff in the proceedings should be his company, Sage Group Ltd (Sage);
(b)Indiana should be added as a defendant.

Mr Prasad applied for, and was granted, leave to amend his proceedings accordingly.
[6] An amended statement of claim giving effect to these changes was filed on 17 June 2004. Mr Prasad was no longer the plaintiff, being replaced by Sage, and Indiana was added as a defendant. The amended statement of claim contained causes of action for breach of copyright, breach of s 9 of the Fair Trading Act 1986 and passing off. In relation to the copyright claim, it was alleged that:
(a)Sage had commenced publication of Indian Bizz in 1998, and had published updated editions in 2000, 2002, 2003 and 2004;
(b)Indiana and Mr Lal had published a rival publication in March 2003 and in 2004;
(c)The rival publication breached Sage’s copyright in Indian Bizz.

Overall, the pleadings were consistent with Sage being the owner of the copyright in Indian Bizz.
[7] Sage’s claims were dismissed by Judge Blackie.[2] In relation to the breach of copyright claim Judge Blackie held:
(a)Sage had demonstrated that it held the copyright in Indian…

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: [2010] NZCA 111
Decision Date: 30 March 2010

CaseChat Overview and Summary

Indiana Publications (NZ) Ltd and others appeal against the decision of the Associate Judge who dismissed their application for summary judgment in proceedings brought by Rajendra Prasad for breach of copyright. The respondent, Mr Prasad, alleges he is the copyright holder of the business directory “Indian Bizz” and that the appellants’ publication in March 2003 infringed his copyright. The court had to decide whether the respondent was precluded from bringing the proceedings due to issue estoppel arising from a previous judgment. The court found that the respondent had authorised the previous proceedings to be conducted on the basis that Sage, and not he, was the owner of the copyright. Further, the only breach claimed in the current proceedings related to the 2003 publication, which had already been determined not to infringe copyright. The court held that the respondent’s proceedings were an abuse of process and were struck out. The respondent must pay the appellants’ costs for a standard appeal on a band A basis, together with usual disbursements.

Orders