Venus Adult Shops Pty Ltd v Fraserside Holdings Ltd (No 2) [2007] FCAFC 41

Venus Adult Shops Pty Ltd v Fraserside Holdings Ltd (No 2) [2007] FCAFC 41

The appellants did not establish any denial of procedural fairness or other exceptional basis for reopening the appeal. The Court held that the issues underlying grounds 1, 6 and 7 had been addressed in the appeal, that the replacement cost observation was only a general statement not affecting the outcome, that the minority judgment did not affect the result, and that no basis was shown to reopen the costs ground. The motion to vary or set aside the judgment was therefore dismissed with costs.

Jurisdiction
Australia
Judgment Date
28 March 2007
Procedural Posture
Motion to Set Aside and Vary Appeal Judgment / After Full Court Judgment on Appeal and Before Entry of Orders
Outcome
The appellants' motion to vary or set aside the judgment made on 20 December 2006 was dismissed with costs.
Legal Topics
['application to Reopen Appeal After Judgment' 'procedural Fairness' 'discretion to Vary or Set Aside Judgment Before Entry' 'assessment of Damages for Copyright Infringement' 'conversion Damages' 'additional Damages' 'costs']
['practice and Procedure' 'copyright'] ['application to Reopen Appeal After Judgment' 'procedural Fairness' 'discretion to Vary or Set Aside Judgment Before Entry' 'assessment of Damages for Copyright Infringement' 'conversion Damages' 'additional Damages' 'costs']

Case Brief

Summary, issues, holding and outcome

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Procedural Posture

Motion to Set Aside and Vary Appeal Judgment / After Full Court Judgment on Appeal and Before Entry of Orders

Legal Issues

  1. 1 ['Whether the appellants were denied procedural fairness because appeal grounds 1, 6 and 7 were determined on an evidentiary basis concerning classification or legality of films which they had not been able to address.' 'Whether the appeal should be reopened because the majority referred to replacement cost as a possible basis for conversion damages without submissions on that issue.' 'Whether the appeal should be reopened because the minority judgment did not address certain grounds of appeal.' 'Whether the appeal should be reopened to address appeal ground 11 concerning costs at first instance.']

Ratio Decidendi

The appellants did not establish any denial of procedural fairness or other exceptional basis for reopening the appeal. The Court held that the issues underlying grounds 1, 6 and 7 had been addressed in the appeal, that the replacement cost observation was only a general statement not affecting the outcome, that the minority judgment did not affect the result, and that no basis was shown to reopen the costs ground. The motion to vary or set aside the judgment was therefore dismissed with costs.

Court Disposition

The appellants' motion to vary or set aside the judgment made on 20 December 2006 was dismissed with costs.

Orders

  • ["The appellants' motion filed 3 January 2007 is dismissed." "The appellants are to pay the respondents' costs of the motion." 'The orders of the Court made on 20 December 2006 are to be entered forthwith.']