Meskenas v ACP Publishing Pty Ltd (No.2)

[2006] FMCA 1461

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MESKENAS v ACP PUBLISHING PTY LTD (No.2) [2006] FMCA 1461

COPYRIGHT – COSTS − Assessment − where applicant abandoned certain points of claim at the hearing − whether parties to pay their own costs − whether costs should be reduced where a respondent has been put to a defence of allegations never pursued.

Copyright Act 1968, s.35
Federal Magistrates Court Rules 2001, rr.21.03, 21.02(2)(a)

Applicant: VLADAS MESKENAS

Respondent: ACP PUBLISHING PTY LIMITED

File Number: SYG643 of 2006

Judgment of: Raphael FM

Hearing date: 28 September 2006

Date of Last Submission: 28 September 2006

Delivered at: Sydney

Delivered on: 28 September 2006

REPRESENTATION

Counsel for the Applicant: Mr C. Evatt

Solicitors for the Applicant: Ward, Maxwell & Co

Counsel for the Respondent: Mr J. Hennessy

Solicitors for the Respondent: Gilbert & Tobin

ORDERS

1. The respondent pay the applicant’s costs assessed in the sum of $10, 000.00 pursuant to Part 21 Rules 21.03 and 21.02(2)(a) of the Federal Magistrates Court Rules 2001.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG643 of 2006

VLADAS MESKENAS

Applicant

And

ACP PUBLISHING PTY LIMITED

Respondent

REASONS FOR JUDGMENT

1. I have before me an application in relation to costs which I had reserved out of the judgment in these proceedings.  The reason for my reservation was that I suspected, wrongfully as it turned out, that an offer may have been made by the respondent to the applicant in a sum that could have exceeded the amount awarded. 

2. As it is, the respondent seeks an order that each party pay its own costs and the applicant seeks an order that he be paid his costs, which have been assessed pursuant to Schedule 1 of the Federal Magistrates Court Rules 2001 in the sum of $11,483.50.  The grounds upon which the respondent argues that the most appropriate order is that each party pay its own costs is that the case was, until approximately two weeks prior to the hearing, intended to be fought on the basis of an alleged breach of copyright as well as alleged breaches of the Trade Practices Act 1974 and passing off.  When the case came to trial, the alleged breaches of the Trade Practices Act and the alleged passing off were abandoned, and the case was run purely on the basis of a moral rights claim, which had been broadcast to the respondent perhaps two weeks prior, and copyright. 

3. In the event, I found that the applicant did not have copyright due to the manner in which negotiations for the painting of the portrait were made between himself and the late Dr Chang. These facts were, of course, known to the applicant and had been known, although possibly forgotten, by those he instructed, who had acted for him in the proceedings brought against St. Vincent’s Hospital and Dr Chang’s widow that are referred to in my judgment. As it was, the applicant asserted copyright and put the respondent to proof that he was not the copyright owner, or more accurately, required the respondent to overcome the presumption of copyright created by the applicant’s signing of the portrait pursuant to s.35 Copyright Act 1968. 

4. I am sensible of the fact that the ordinary rule is that costs should follow the event and that the courts, including this court, are reluctant to undertake what I have previously described as a filleting exercise, where an applicant has not succeeded on one or more parts of his or her claim but has succeeded on others.  However in this case, I do think that there is something to be said for a relaxation of that position where a party is put to a defence of allegations that are never pursued and an allegation that was not pursued in what could be described as “an appropriately frank” manner. 

5. One of the objects of the Federal Magistrates Court legislation was to provide a forum where disputes of this kind could be decided more ‘cheaply, quickly and simply’.  The total sum of $11,483.50, being the costs awardable in relation to a novel point in a trial that lasted a full day, seems to me to be evidence that at least one of the objects of the court has been fully adopted.  But just because the costs are not very great, that does not mean that my views concerning the parts of the case on which the applicant was not successful should not be reflected in some appropriate order.  In the circumstances, and doing the best I can, I think the most appropriate way of reflecting my concern is to reduce the costs awardable to the applicant from $11,483.50 to $10,000. I assess the costs of the applicant in this matter in the sum of $10,000 pursuant to the provisions of Rules 21.03 and 21.02 (2)(a) of the Federal Magistrates Court Rules 2001.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date: