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Look Design and Development Pty Ltd v Sweeney[2015] QDC 36

Look Design and Development Pty Ltd v Sweeney[2015] QDC 36

DISTRICT COURT OF QUEENSLAND

CITATION:

Look Design and Development Pty Ltd v Sweeney & Anor [2015] QDC 36

PARTIES:

LOOK DESIGN AND DEVELOPMENT PTY LTD T/AS COAST LIFE HOMES

(plaintiff, applicant and respondent)

v

BRADLEY JOHN SWEENEY

(first defendant, applicant and respondent)

and

SHARNELL ELIZABETH SWEENEY

(second defendant, applicant and respondent)

FILE NO/S:

D98/14

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court at Maroochydore

DELIVERED ON:

25 February 2015

DELIVERED AT:

Maroochydore

HEARING DATE:

6 February 2015

JUDGE:

Long SC, DCJ

ORDER:

  1. The application filed by the defendants on 22 January 2015 is allowed.
  2. The application filed by the plaintiff on 30 January 2015 is dismissed.
  3. The parties are directed to attend, to participate in and act reasonably and genuinely in the mediation to be conducted at a time to be agreed, at Law Society House, Level 2, 179 Ann Street, Brisbane.
  4. The mediator, is to be selected by the plaintiff, from a panel of three proposed mediators, by the defendants. The defendants are to communicate the proposed panel, on or before 4 March 2015. The plaintiff is to make and communicate its selection, on or before 11 March 2015.
  5. Copies of the following documents are to be provided to the mediator:
  1. a.
    Claim and Statement of Claim filed 12 June 2014;
  1. b.
    Notice of Intention to Defend and Defence of the first and second defendants dated 21 July 2014;
  1. c.
    Request for Further and Better Particulars of the Defence dated 24 July 2014;
  1. d.
    Further and Better Particulars of the Defence dated 4 August 2014;
  1. e.
    defendants’ request for Further and Better Particulars of the Statement of Claim dated 4 August 2014;
  1. f.
    dreply to the Defence dated 6 August 2014;
  1. g.
    response to the request for Further and Better Particulars of the Statement of Claim dated 21 August 2014;
  1. h.
    further response to the request for Further and Better Particulars of the Statement of Claim dated 1 December 2014;
  1. i.
    first further response to the request to the request for further and better particulars of the Statement of Claim dated 23 December 2014;
  1. j.
    the documents referred to as the “CLH Plans”, at paragraph 32 of the Statement of Claim;
  1. k.
    the document referred to as the “Sweeny Sketch”, at paragraph 34 of the Statement of Claim.
  1. l.
    the document referred to as the “MVDD Plan” at paragraph 54 of the Statement of Claim; and
  1. m.
    the document referred to as the “approved MVDD Plan”, at paragraph 59 of the Statement of Claim.
  1. 6.
    The period of mediation is fixed at a maximum of one day and may extend beyond that period only with the authorisation of the parties.
  1. 7.
    The parties are to negotiate the fee with the mediator.
  1. 8.
    The parties are to pay the following percentage of the cost of the mediation:
  1. a.
    plaintiff – 50%
  1. b.
    defendants – 50%
  1. 9.
    The parties must pay the respective percentages of the costs to the mediator prior to the commencement of the mediation.
  1. 10.
    If the mediation has not been completed within three months of the referring order the parties must provide a report to the Registrar setting out the circumstances of the matter.
  1. 11.
    The mediator is to be informed of the appointment, by joint letter from the lawyers for the parties.
  1. 12.
    The proceeding is stayed until six business days after the mediators’ certificate is filed in the Registry or further order.
  1. 13.
    The plaintiff is to pay the defendants’ costs of both applications, as agreed or assessed on the standard basis.

CATCHWORDS:

PRACTICE AND PROCEDURE – Application – referral to mediation – Cross-Application for request for trial date to be dispensed with or the matter set for trial – Mediation – where defendants apply for referral of claim to mediation – where application is opposed by the plaintiff – discretion to order when opposed by one of the parties to the action – balancing factors and relevant considerations when exercising discretion to order dispute be referred to mediation despite opposition by one party

COPYRIGHT – infringement – house plans – damages – measure of

Civil Proceedings Act 2011 (Qld), Part 6, ss 37(b), 39, 43(3), 49(1), 50 and 58.

Copyright Act 1968 (Cth), ss 115(3), 115(4)(b).

District Court Act 1967 (Qld), s 69.

Uniform Civil Procedure Rules 1999 (Qld), rr 5, 321, 323, 331, 466, 467(4) and 469.

AV Jennings v Bogdan [2009] FCA 307, (2009) 80 IPR 356, cited.

Bailey v Namol Pty Ltd (1994) 30 IPR 147, cited.

Carlisle Country Homes v Brown (1999) 22 Qld Lawyer Reps 1, cited.

Elford v Nolan & Anor [2014] QDC 257, cited.

McClure v Australian Independent Wholesalers Pty Ltd [2006] QDC 281, cited.

New England Country Homes Pty Ltd v Moore (1998) 82 FCR 500, cited.

Simic v LTH Investments (Qld) Pty Ltd [2013] QDC 240, cited.

Skalski & Anor v Brown & Anor [2008] QDC 263, cited.

Trelour v JH McDonald Pty Ltd [2001] QDC 53, cited.

Urban Ventures Pty Ltd v Solitare Homes Pty Ltd [2010] FCA 1375, cited.

Vanwake Investments Pty Ltd v New-Stat Nominees Pty Ltd & Ors [2005] QDC 57, applied.

Wade v Gargett & Anor [2010] QDC 27, cited.

COUNSEL:

M. Turner, solicitor for the plaintiff, applicant and respondent

G.Barr, counsel for the defendant, applicant and respondent

SOLICITORS:

Butler McDermott for the plaintiff

Brennans Solicitors for the defendant

  1. [1]
    In this matter there are cross-applications made in a proceeding. It will be convenient to refer to the parties, respectively as plaintiff and defendants. Chronologically and also logically, the first for determination is the application filed by the defendants on 22 January 2015, seeking an exercise of this court’s discretion to refer the parties and this matter to mediation.[1] 
  1. [2]
    The matter or proceeding to be so referred, was commenced by claim and statement of claim filed by the plaintiff on 12 June 2014. The claim is for:

“1.A declaration that the plaintiff is the owner of the copyright subsisting in the home plans identified as;

  1. (a)
    the Bells 215 Design Plan;
  1. (b)
    the Bells 220 Sketch;
  1. (c)
    the First CLH Design Plans;
  1. (d)
    the Second CLH Design Plans; and
  1. (e)
    the Third CLH Design Plans.
  1. 2.
    Damages for infringement of copyright, including additional damages pursuant to section 115(4) of the Copyright Act 1968 (Cth).
  1. 3.
    Interest upon any such damages pursuant to section 58 of the Civil Proceedings Act 2011 (“CPA”).
  1. 4.
    Costs.”[2]
  1. [3]
    The gravamen of the claim is that consequently upon exposure to a display home, built by the plaintiff and a process that ensued in respect of the defendants’ engagement of the plaintiff to carry out various investigations and preparations for their proposal to build a home on land at Gympie, the defendants came into possession of various design plans, which had been produced by the plaintiff and in the course of that engagement and for the purposes of the further engagement of the plaintiff, a project builder, to build a home on the defendant’s land. It is contended that each of the three versions of such design plans are adaptations of a sketch prepared by or for the plaintiff and as an adaptation of an earlier design plan, also prepared by or for the plaintiff, for the purpose of its construction of project homes and that the plaintiff, at all material times, was the owner of the copyright subsisting in each of those “original artistic works”.
  1. [4]
    It is then contended that in breach of that copyright, the defendants have, for the purpose of the construction of their home on the land, “provided a copy of or communicated details of” at least some part of the material in respect of which the copyright is claimed, to both the builder who built their residence and the licensed building designer, who was engaged to produce the approved plan for that residence.
  1. [5]
    Accordingly, and upon the basis of substantial similarity and absence of authorisation or permission to do so, the plaintiff alleges infringement of its copyright in the plans it produced for the defendants and seeks damages. It appears that the declaration or declarations sought in relation to the identified home plans is ancillary to and for the purpose of the claim for damages and, in any event, may only relate to the necessary factual findings, if the plaintiff is to succeed in its claim for infringement of copyright.
  1. [6]
    Although there is no express particularisation of the quantum of damages sought by the plaintiff, it is otherwise pleaded that the offer of the plaintiff in respect of the final version of the plan prepared for the defendants, was to build that home for a contract price of $255,850, which included a profit component of $48,074.[3] 
  1. [7]
    Although there are a number of non-admissions pleaded in the defence and the reply contends that both deemed admissions and unreasonable non-admissions are the result, it suffices to presently note that the issues put in contest by the defence include:
  1. (a)
    the contention that the plaintiff had or owned the copyright in any of the plans it prepared for the defendants;
  1. (b)
    the contention that any such plan was copied or traced by hand;
  1. (c)
    any contention that the builder who built the defendants’ house and/or the  designer of the plan approved in respect of that construction, were provided with a copy or had the details of any such plan provided to them; and
  1. (d)
    any contention that the constructed home or any plan from which it was constructed, is substantially similar to any of the plans prepared for the defendants by the plaintiff or that there has been any infringement of any copyright of the plaintiff.
  1. [8]
    Further and particularly in respect of the plaintiff’s contentions that each of the defendants knew or ought to have known that their acts constituted an infringement of the copyright of the plaintiff, as subsisting in the plans it had prepared for the defendant and notwithstanding their denial of the acts alleged, the defendants also contend that:
  1. (a)
    by reference to particular facts[4] it is to be inferred that the defendants had an implied licence from the plaintiff to use those plans for the purpose of having a house built for them (including by another builder) and to reproduce those plans (or a substantial part thereof) for that purpose and further that by reason of the same premises, the plaintiff is estopped from resiling from an implied representation that there was not copyright in or that it did not assert any copyright in those plans;[5]
  1. (b)
    they were not aware, and had no reasonable grounds to suspect, that they were infringing the plaintiff’s copyright and that accordingly the plaintiff is not, pursuant to s 115(3) of the Copyright Act 1968 (Cth), entitled to any damages in respect of any alleged infringement; and
  1. (c)
    alternatively, that if there is established any entitlement of the plaintiff to recover compensatory damages,[6] that would only be as to the contribution of the alleged copyright subsisting in the plans, to the profit which would have been derived from constructing a house for the defendants, in accordance with those plans and no more than 10 per cent of the otherwise unadmitted profit component pleaded by the plaintiff and therefore no more than $4,807.[7]
  1. [9]
    The second application is that filed by the plaintiff on 30 January 2015 and which seeks an order pursuant to UCPR 469, for the dispensation of the signatures of the defendants on the request for trial date or alternatively, that the Court set the matter for trial pursuant to UCPR 466.
  1. [10]
    What is described as “a further request for trial date” and identified as the third such request of the plaintiff, was served on the defendants under cover of correspondence dated 23 December 2014.[8]  After taking issue with this, by way of letter dated 20 January 2015, the solicitors for the defendants did respond by completing the request form on 21 January 2015.[9]  The effect was that (notwithstanding some discussion on the hearing of these applications that this may, if anything err on the side of being optimistic) there was agreement that one to two days was the estimate for trial.  However it should be concluded that even if this may be sufficient for the taking of evidence, there may be further steps and costs incurred in respect of the preparation and hearing of submissions.
  1. [11]
    Otherwise, the defendants’ solicitors completed the form, to indicate a preference for trial dates on or after 9 April 2015 (due to other commitments of counsel and the solicitors, before then) and to take issue with the contention that the proceeding was ready for trial, within the meaning of UCPR 467(4) and that all necessary steps had been completed.  In essence, the outstanding matters were contended to be:
  1. (a)
    a court ordered mediation, if not otherwise agreed; and
  1. (b)
    matters referred to in the letter of 20 January 2015 and in particular a need for:
  1. (i)
    further disclosure by the plaintiff; and
  1. (ii)
    review of the defence in the light of the assertions in the reply as to deemed admissions.
  1. [12]
    No other contention was made in opposition to this application, on the hearing of it. As I have noted, logically the outcome of this application will be dependent on first deciding the application for referral to mediation. This is because pursuant to UCPR 321 and subject to any other order of the Court, a referral to an ADR process, effects a stay of the dispute and all claims made in it, until six business days after the report of the ADR convener and certifying the finish of the ADR process, is filed with the Registrar.[10]
  1. [13]
    On the hearing of the applications, counsel for the defendants fairly and properly conceded that little if anything of substance remained undisclosed by the plaintiff and accepted that as the pleadings closed when the reply was filed on 5 August 2014, any issue as to any asserted deemed admission, remained primarily as a consideration for the defendants and not as a matter that should itself delay the fixing of trial dates.[11]  It was also appropriately conceded that should the plaintiff’s application succeed, an order for costs in favour of the plaintiff could not be sensibly resisted. 
  1. [14]
    Accordingly the critical issue is the determination of the defendant’s application for referral to mediation. For the defendants and in support of that application, it is pointed out that:
  1. (a)
    the defendants first proposed such a referral, on 15 September 2014 and repeated the proposal on 24 September 2014 and reiterated the desirability of such a referral in the letter of 20 January 2015 and in the context of the issues as to the request for trial date; and
  1. (b)
    whilst the plaintiff, in a letter dated 1 December 2014, had suggested that whilst the defendants continued to maintain that their home is distinctly dissimilar to the plaintiff’s plan and therefore could not see how mediation would assist to resolve the dispute, the plaintiff had otherwise, in correspondence dated 15 and 21 January 2015, stated a preparedness to participate in a without prejudice conference with the defendants and their respective legal advisers.[12]
  1. [15]
    For the defendants, reference is made to authorities where consideration has been given to the exercise of the discretion to order such a referral, even in the face of opposition of a party or parties.[13]  As is discussed in those cases, there is a broad and unprescribed discretion to be exercised, and to adopt the words of Robin QC DCJ, in McClure v Australian Independent Wholesalers Pty Ltd:

“Each case must depend on its circumstances and, ultimately, on the way in which each judge exercises his or her discretion.  Therefore no case can be seen as establishing any general rule.”[14]

It may be appropriate to regard ADR processes, including mediation, as an important, if not integral, part of the Court’s adjudicative processes and to recognise that the involvement of an independent third party, may bring a different perspective into a process that is otherwise controlled by the parties and provides an opportunity of a negotiated settlement, rather than one imposed by the Court.  However, the cases referred to, including those cited by the plaintiffs as instances where mediation was not ordered in the absence of the consent of all parties,[15] are essentially examples of the separate exercise of discretion according to the particular circumstances of different cases.

  1. [16]
    Clearly the objects of Part 6 of the CPA, in making provision for ADR processes and as set out in s 37, provide some important context, as does the expression of the philosophy and purpose of the Uniform Civil Procedure Rules, as set out in UCPR 5. Of course, it is not to be assumed that the objectives of facilitating the just and expeditious resolution of the real issues in proceedings and minimising expense[16] and avoiding undue delay and expense[17] or improving access to justice and reducing cost and delay,[18] in litigation is always to be achieved or even facilitated by an attempt at an ADR process.  In particular and where there is no or little apparent prospect of any negotiated settlement in a matter, such objectives may be best achieved by bringing a matter to trial as early as possible. 
  1. [17]
    In this matter the plaintiff’s resistance to mediation is based on contentions as to the absence of significant prospect of settlement at a mediation and the prospect therefore of additional and unproductive costs for the parties, when a relatively short trial could be held in the near future.
  1. [18]
    Further, it is contended that the fact that this application comes relatively late (in the sense that the proceedings are at a point, when the matter could be listed for trial and substantial costs have already been incurred, in respect of the steps taken to get to that point), is a circumstance against referring the matter to mediation. In my view, that is a relevant consideration but it may not necessarily and in isolation, point against such a referral. It may be that, as the circumstances of this case indicate, the prospect of a meaningful mediation and hence the prospect of a properly considered outcome, is enhanced by the steps that have occurred in informing each party, not only of the case to be made by each, but also the disclosable material relevant to the issues potentially in contention.
  1. [19]
    It can be recognized that the plaintiff’s stated objection to the referral is not necessarily a positive indicator of the prospects of a successful mediation. However and as has been previously observed:

“No party can be forced to reach agreement but they can be directed to participate reasonably and genuinely. More importantly, a skilled mediator can promote meaningful involvement.”[19]

Of course, different considerations may arise if the circumstances disclosed any convincing and reasoned opposition to the prospect of settlement before trial.  It is accordingly of some importance to both understand and examine the basis or reasons for the plaintiff’s objection to the referral to mediation. 

  1. [20]
    It is pointed out that on the defendant’s proposal, the evidence indicates a cost of $9,680, including GST, for the proposed mediator who is a senior counsel. That of course is to be shared between the parties and it is contented that this is an excessive cost for this type of matter and it is further contended that this cost would ultimately be wasted in view of the plaintiff’s unwillingness to consent to mediation. In that regard it is pointed out that:
  1. (a)
    There is a substantial gap between the parties in that the defendants have not admitted or denied, all of the fundamental elements of the alleged infringement of copyright, including even as to whether copyright assisted in the plaintiff’s plans and that there is nothing to indicate that this gap may be narrowed or closed;
  1. (b)
    That, to date, the defendants “have refused to engage in any meaningful discussions with the plaintiff, having refused to speak with them all together or denying any similarity”, including by declining the plaintiff’s offer to attend a without prejudice conference, and “have issued threats to the plaintiff to adversely affect their business on the Sunshine Coast through derogatory media attention”; and
  1. (c)
    The plaintiff desires a finding of fact concerning this copyright infringement and asserts that a mediated settlement is unable to provide the plaintiff with the relief that it seeks in these proceedings.[20]
  1. [21]
    Whilst it was not contended that any finding of copyright infringement would have any legal significance extending beyond these proceedings or other than as between these parties, it can be understood that any public affirmation of that occurrence, might be of interest and benefit to the plaintiff. However and particularly having regard to s 50 of the CPA, a public acknowledgement of the kind that the plaintiff desires, may not be excluded by an agreement reached at a mediation. That would depend on the terms of any such agreement.
  1. [22]
    The situation that most if not all of the critical issues in the action remain in issue (that is if contentions as to deemed admissions are not successful) is also not necessarily a consideration pointing against referral to mediation. In particular, it should not be ignored that, consistently with the objectives and philosophy that have been noted, that in the absence of reaching a negotiated resolution of the matter, mediation potentially provides an opportunity for resolution or narrowing of issues and thereby the prospect of reduction of subsequent expense in litigation of those issues. In this matter, there is no indication that the plaintiff does not or would not have any interest in such an outcome.
  1. [23]
    Whilst it is apparent that substantial cost has already been incurred, on both sides, in respect of this dispute, the matter is not yet at the point when what are likely to be the more significant costs, of preparing for and conducting the trial, are incurred. Moreover and whilst sight should not be lost of the cost to the parties of preparation for and engagement in mediation and the risk of some wasted expense, if that is unsuccessful, it would not necessarily follow that all of the preparatory work would lack utility in respect of the trial which may then follow and sight should not also be lost of the opportunity to narrow the issues that require litigation. Similarly, sight should not be lost at the prospect of the saving of public expense and the availability of court time to hear other matters requiring adjudication.
  1. [24]
    Next, it must be observed that except to the extent that referral to mediation involves the extra cost of a mediator, the plaintiff’s preparedness to engage in without prejudice negotiation, is a clear indication of some prospect of a resolution by way of ADR. Although and for the plaintiff, the view has been expressed, by the sole director of the plaintiff, that what he describes as a threat “and the defendant’s continued and steadfast denial of any wrongdoing leaves me to the very strong opinion that I am very unlikely to reach agreement with the defendants to resolve these proceedings at mediation”,[21] for reasons already given “the steadfast denial of any wrongdoing” on the pleadings or otherwise, should not necessarily be seen as an obstacle to a negotiated settlement, at a mediation sought by the defendants.
  1. [25]
    The threat to which reference is made arises only from Mr Kay’s subjective implication of a particular motivation of the defendants, as underlying an assertion made by their solicitor, in the letter dated 20 January 2015.[22]  On the hearing of these applications, that assertion was appropriately described by the defendants’ counsel, as unfortunate.  For present purposes, it is only necessary to observe that the implication that Mr Kay seeks draw from that assertion is neither expressed nor necessarily apparent.  At face value, what appears to be asserted is a simple proposition that it may not necessarily follow that any reporting of the circumstances of the plaintiff’s pursuit of the defendants, would be seen in a positive light in the community and that such a consideration may arise even if the plaintiff succeeds in vindicating its clear entitlement of pursuing its legal rights.
  1. [26]
    Accordingly and in the context of considering the desirability of a referral to mediation, where it may be expected that much broader and more significant considerations will be canvassed and may be influential, as to a negotiated settlement, these express reasons for objection to the referral are properly to be given little weight and should not lead to any conclusion that there is no or even little prospect of utility in the mediation.
  1. [27]
    It would appear that a concern underlying the objection of the plaintiff is to the incidence of the additional cost of the involvement of a mediator. The benefits of the involvement of a competent mediator are obvious, and it must be observed that the making of a referral order will embody an expectation that the parties will be involved in a genuine process towards obtaining a negotiated settlement of this dispute, if that is possible. The extra cost of a mediator and particularly one sufficiently experienced as to dealing with the intricacies of copyright law, may well be beneficial to facilitation of that prospect, into a reality. This is particularly because of the role that such a mediator may play in alerting both parties to the necessity to consider and assess the situation from an understanding of the strengths and weaknesses of each party’s case and position and accordingly, the risks of litigation.
  1. [28]
    Considerations as to the prospect and apparent desirability of a negotiated settlement, particularly arise where, as here, the likely damages to be awarded at trial are not large, particularly in comparison to the potential costs of the trial process, to both parties.
  1. [29]
    If a breach of copyright is established, damages may be awarded and where it is proper to do so, additional damages may also be awarded under s 115(4) of the Copyright Act.  As noted in the Vanwake Investments Pty Ltd v New-Stat Nominees Pty Ltd & Ors,[23] such damages are analogous to aggravated or exemplary damages and would require specific attention to the matters specified in s 115(4)(b) of that Act.  As further noted in that decision, damages for breach of copyright “are commonly assessed at a fair fee for the use of the plans the subject of the infringement”.[24]  Although, and in that case, it was also recognised that damages were awarded on the basis of compensation of the plaintiff for the loss of the commercial opportunity occasioned by the infringement,[25] it was noted that “[t]his depends on whether the commercial opportunity really has been lost as a result of the defendants’ actions” and that “commonly in cases of this nature that is not the case”.[26]
  1. [30]
    Accordingly, and in these circumstances and particularly where it is apparent that the prospective damages that may be recovered, at trial, may well be outweighed by the costs of doing so and where and despite the stated opposition of the plaintiff to mediation, it has otherwise proposed settlement negotiations and it is not to be concluded that there is no or even little prospect of any successful outcome of it, there should be a referral to mediation.
  1. [31]
    As to the form of the order to be made, in that eventuality and for the plaintiff, the only issues raised in respect of the defendants’ draft were as to:
  1. (a)
    the provision of a panel of proposed mediators for selection by the plaintiff;
  1. (b)
    the inclusion, in the list of documents to be supplied to the mediator, of copies of the various plans and drawings that are referred to in the pleadings; and
  1. (c)
    that the letter of engagement of the mediator be a joint letter.

Notwithstanding that the defendants had previously proposed a panel of mediators, none of these amendments were opposed by them. Accordingly, the application filed by the defendants on 22 January 2015 is allowed and the application filed by the plaintiff on 30 January 2015 is dismissed.  The further orders are:

  1. The parties are directed to attend, to participate in and act reasonably and genuinely in the mediation to be conducted at a time to be agreed, at Law Society House, Level 2, 179 Ann Street, Brisbane.
  2. The mediator, is to be selected by the plaintiff, from a panel of three proposed mediators, by the defendants. The defendants are to communicate the proposed panel, on or before 4 March 2015. The plaintiff is to make and communicate its selection, on or before 11 March 2015.
  3. Copies of the following documents are to be provided to the mediator:
  1. (a)
     Claim and Statement of Claim filed 12 June 2014;
  1. (b)
    Notice of Intention to Defend and Defence of the first and second defendants filed 21 July 2014;
  1. (c)
    Request for Further and Better Particulars of the Defence dated 24 July 2014;
  1. (d)
    Further and Better Particulars of the Defence filed on 29 September 2014;
  1. (e)
    defendants’ request for Further and Better Particulars of the Statement of Claim filed 4 August 2014;
  1. (f)
     reply to the Defence filed 5 August 2014;
  1. (g)
    response to the request for Further and Better Particulars of the Statement of Claim filed 21 August 2014;
  1. (h)
    further response to the request for Further and Better Particulars of the Statement of Claim filed 5 January 2015;
  1. (i)
    first further response to the request to the request for further and better particulars of the Statement of Claim filed 5  January 2015;
  1. (j)
    the documents referred to as the “CLH Plans”, at paragraph 32 of the Statement of Claim;
  1. (k)
    the document referred to as the “Sweeny Sketch”, at paragraph 34 of the Statement of Claim.
  1. (l)
    the document referred to as the “MVDD Plan” at paragraph 54 of the Statement of Claim; and
  1. (m)
    the document referred to as the “approved MVDD Plan”, at paragraph 59 of the Statement of Claim.
  1. 4.
    The period of mediation is fixed at a maximum of one day and may extend beyond that period only with the authorisation of the parties.
  1. 5.
    The parties are to negotiate the fee with the mediator.
  1. 6.
    The parties are to pay the following percentage of the cost of the mediation:
  1. (a)
    plaintiff – 50%
  1. (b)
    defendants – 50%
  1. 7.
    The parties must pay the respective percentages of the costs to the mediator prior to the commencement of the mediation.
  1. 8.
    If the mediation has not been completed within three months of the referring order the parties must provide a report to the Registrar setting out the circumstances of the matter.
  1. 9.
    The mediator is to be informed of the appointment, by joint letter from the lawyers for the parties.
  1. 10.
    The proceeding is stayed until six business days after the mediators’ certificate is filed in the Registry or further order.
  1. 11.
    The plaintiff is to pay the defendants’ costs of both applications, as agreed or assessed on the standard basis.
  1. [32]
    As to the costs of the applications, there appears to be no sufficient reason that they should not follow the outcomes of them. The defendants have succeeded in both. Although the plaintiff contended that the costs should be reserved, on the basis that in the event of unsuccessful mediation and ultimate success of the plaintiff in the proceedings, it would be unfair that the plaintiff had been ordered to pay these costs, that proposition should not be accepted.
  1. [33]
    This is not a situation where the real merit of the defendants’ successful application may only be known at the conclusion of these proceedings and the defendants have succeeded here, not upon any expectation that the referral to mediation will or is even likely to be successful. Rather the necessary conclusion has been only that there is such a prospect and that the desirability of giving both parties the opportunity of availing that prospect, is warranted in the circumstances. The costs at issue relate only to those incurred in relation to the applications and do not include the costs of the mediation. The necessity for the defendants to incur those costs was because of both the plaintiff’s opposition to the referral and the unsuccessful application to have the proceeding set for trial.

Footnotes

[1]  As an exercise of either the power provided by s 43(3) of the Civil Proceedings Act 2011 or Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”) r 323.

[2]  Despite this, the relief sought by the statement of claim includes a claim for an account of profits, in the alternative to damages.  However, and for the purpose of deciding these applications, nothing turns on this.

[3]  The jurisdiction of this Court to hear and determine this claim and accordingly these applications in the proceedings, has been recognised: see Vanwake Investments Pty Ltd v New-Stat Nominees Pty Ltd & Ors [2005] QDC 57 at [3] and [4] (and the authorities therein cited).  Similarly here, there is no issue raised as to any want of jurisdiction and to the extent that the claim includes relief by way of declaration, that appears to be ancillary to and for the purpose of the relief sought in the form of damages for infringement of copyright and accordingly, within the powers provided by s 69 of the District Court Act 1967, in such circumstances.

[4]  See the defence filed 21/7/14 at [18], in direct response to allegations that the plaintiff did not authorise or permit the defendants to use any of these plans.

[5]  See the defence at [36].

[6]  It is otherwise denied that there is any entitlement to any additional damages pursuant to s 115(4) of the Copyright Act:  see the defence at [35].

[7]  That is contended on the basis of reference to the decision in AV Jennings v Bogdan [2009] FCA 307, (2009) 80 IPR 356 (see Ex PEB-1 to the Affidavit of P E Brennan, filed 22/1/15, at p 2). It can be noted that the plaintiff’s response was to refer to the decision in Urban Ventures Pty Ltd v Solitare Homes Pty Ltd [2010] FCA 1375, where “a 25% figure for copyright contribution on profit” was allowed (see Exhibit PEB-1, at p 5).

[8]  Affidavit of Kay L Smith filed 30/1/15, at [3] and Exhibit KLS1.

[9]  Ibid at [4] and Ex KLS2.

[10]  “ADR process” is defined by s 39 of the CPA, to include mediation and UCPR 331 applies in respect of the requirements of the certificate to be filed pursuant to s 49(1) of the CPA.

[11]  It is otherwise noted that the last substantive step in the proceeding was the provision of further particulars, by the plaintiff on 5 January 2015.

[12]  Affidavit of P E Brennan filed 22/1/15, at [9]-[17] and Ex PEB-1.

[13]  Such as Elford v Nolan & Anor [2014] QDC 257 and Simic v LTH Investments (Qld) Pty Ltd [2013] QDC 240; cf: Wade v Gargett & Anor [2010] QDC 27.

[14]  [2006] QDC 281, at p 2.

[15]Trelour v JH McDonald Pty Ltd [2001] QDC 53 and Wade v Gargett & Anor [2010] QDC 27.

[16]  UCPR(5)(1).

[17]  UCPR(5)(2).

[18]  s 37(b) CPA.

[19]  See Skalski & Anor v Brown & Anor [2008] QDC 263, at [14], per Kingham DCJ.

[20]  See plaintiff’s Outline of Submission filed and read 6/2/15 at [29]–[36] and [42]–[47].

[21]  Affidavit of R H Kay filed 5/2/15, at [25].

[22]  Ibid at [21]-[24].

[23]  [2005] QDC 57 at [92] and [103].

[24]  Ibid at [92] and citing: New England Country Homes Pty Ltd v Moore (1998) 82 FCR 500, at 506; Macgregor on Damages (17th Ed) p. 1479.

[25]  See Bailey v Namol Pty Ltd (1994) 30 IPR 147.

[26]Vanwake at [92] and fn 73: citing e.g.: Carlisle Country Homes v Brown (1999) 22 Qld Lawyer Reps 1, at p 12.

Close

Editorial Notes

  • Published Case Name:

    Look Design and Development Pty Ltd v Sweeney & Anor

  • Shortened Case Name:

    Look Design and Development Pty Ltd v Sweeney

  • MNC:

    [2015] QDC 36

  • Court:

    QDC

  • Judge(s):

    Long DCJ

  • Date:

    25 Feb 2015

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
AV Jennings v Bogdan [2009] FCA 307
2 citations
Jump To
Cite 1 - [2009] FCA 307
Cite 2 - [2009] FCA 307
AV Jennings v Bogdan (2009) 80 IPR 356
2 citations
Jump To
Cite 1 - (2009) 80 IPR 356
Cite 2 - (2009) 80 IPR 356
Bailey v Namol Pty Ltd (1994) 30 IPR 147
2 citations
Jump To
Cite 1 - (1994) 30 IPR 147
Cite 2 - (1994) 30 IPR 147
Carlisle County Homes Pty Ltd v Brown (1999) 22 Qld Lawyer Reps 1
2 citations
Jump To
Cite 1 - (1999) 22 Qld Lawyer Reps 1
Cite 2 - (1999) 22 Qld Lawyer Reps 1
Elford v Nolan [2014] QDC 257
2 citations
Jump To
Cite 1 - [2014] QDC 257
Cite 2 - [2014] QDC 257
McClure v Australian Independent Wholesalers Pty Ltd [2006] QDC 281
2 citations
Jump To
Cite 1 - [2006] QDC 281
Cite 2 - [2006] QDC 281
New England Country Homes Pty Ltd v Moore (1998) 82 FCR 500
2 citations
Jump To
Cite 1 - (1998) 82 FCR 500
Cite 2 - (1998) 82 FCR 500
Simic v LTH Investments (Qld) Pty Ltd [2013] QDC 240
2 citations
Jump To
Cite 1 - [2013] QDC 240
Cite 2 - [2013] QDC 240
Skalski v Brown [2008] QDC 263
2 citations
Jump To
Cite 1 - [2008] QDC 263
Cite 2 - [2008] QDC 263
Trelour v J H McDonald Pty Ltd [2001] QDC 53
2 citations
Jump To
Cite 1 - [2001] QDC 53
Cite 2 - [2001] QDC 53
Urban Ventures Pty Ltd v Solitare Homes Pty Ltd [2010] FCA 1375
2 citations
Jump To
Cite 1 - [2010] FCA 1375
Cite 2 - [2010] FCA 1375
Vanwake Investments Pty Ltd v New-Stat Nominees Pty Ltd [2005] QDC 57
5 citations
Jump To
Cite 1 - [2005] QDC 57
Cite 2 - [2005] QDC 57
Cite 3 - [2005] QDC 57
Cite 4 - [2005] QDC 57
Cite 5 - [2005] QDC 57
Wade v Gargett [2010] QDC 27
3 citations
Jump To
Cite 1 - [2010] QDC 27
Cite 2 - [2010] QDC 27
Cite 3 - [2010] QDC 27

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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