Kilthistle No. 6 Pty Ltd v Austwide Homes Pty Ltd [1999] FCA 1073

Kilthistle No. 6 Pty Ltd v Austwide Homes Pty Ltd [1999] FCA 1073

It would not be appropriate to order a separate trial of the proposed questions because there would likely be significant overlap in evidence and witnesses, determination of the separate issues would not materially narrow the case or avoid the need for factual investigation, and potential for appeals and procedural complexity could delay resolution rather than promote efficiency.

Parties
First Applicant: Kilthistle No. 6 Pty Limited; Second Applicant: Ammrad Pty Ltd t/as Lloyds Transportable Homes; Third Applicant: Betterlook Homes Pty Ltd; Fourth Applicant: Kilthistle No. 4 Pty Limited; Seventh Applicant: Leslie Edward Mouat; Eighth Applicant: Wayne Donald Walgers; First Respondent: Austwide Homes Pty Limited; Second Respondent: Lencoe Pty Limited (previously known as Carindale Homes Pty Limited); Third Respondent: Michael Stanley Neason; Fourth Respondent: John Austin Fleming; Fifth Respondent: Phillip Malcolm Andrea; Sixth Respondent: Bradley John Wilson; Seventh Respondent: Stephen James Filewood; Eighth Respondent: Kerry David Pascoe; Ninth Respondent: James David Pascoe; Tenth Respondent: Dianne Margaret Pascoe; Eleventh Respondent: Australian Securities Commission; Twelfth Respondent: A.V. Wehl Industries Limited; Thirteenth Respondent: Australian Building Materials Ltd (previously known as ACI Australia Limited)
Jurisdiction
Australia
Judgment Date
09 August 1999
Procedural Posture
Motion (application) / Interlocutory Order on Application for Separate Determination of Questions
Outcome
Application for separate determination of the proposed questions dismissed
Legal Topics
Copyright Infringement, Separate Determination of Issues, Designs and Articles Under Copyright Act, Interlocutory Procedure
Intellectual Property Law Practice and Procedure Copyright Infringement Separate Determination of Issues Designs and Articles Under Copyright Act Interlocutory Procedure

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Parties

Kilthistle No. 6 Pty Limited

First Applicant

Ammrad Pty Ltd t/as Lloyds Transportable Homes

Second Applicant

Betterlook Homes Pty Ltd

Third Applicant

Kilthistle No. 4 Pty Limited

Fourth Applicant

Leslie Edward Mouat

Seventh Applicant

Wayne Donald Walgers

Eighth Applicant

Austwide Homes Pty Limited

First Respondent

Lencoe Pty Limited (previously known as Carindale Homes Pty Limited)

Second Respondent

Michael Stanley Neason

Third Respondent

John Austin Fleming

Fourth Respondent

Phillip Malcolm Andrea

Fifth Respondent

Bradley John Wilson

Sixth Respondent

Stephen James Filewood

Seventh Respondent

Kerry David Pascoe

Eighth Respondent

James David Pascoe

Ninth Respondent

Dianne Margaret Pascoe

Tenth Respondent

Australian Securities Commission

Eleventh Respondent

A.V. Wehl Industries Limited

Twelfth Respondent

Australian Building Materials Ltd (previously known as ACI Australia Limited)

Thirteenth Respondent

Procedural Posture

Motion (application) / Interlocutory Order on Application for Separate Determination of Questions

Legal Issues

  1. 1 Whether it is appropriate to order separate determination of questions relating to copying and 'article' under Copyright Act s 77
  2. 2 Whether subjective and objective aspects of reproduction in copyright should be tried separately
  3. 3 Whether determination of article status under s 77 can be decided separately

Ratio Decidendi

It would not be appropriate to order a separate trial of the proposed questions because there would likely be significant overlap in evidence and witnesses, determination of the separate issues would not materially narrow the case or avoid the need for factual investigation, and potential for appeals and procedural complexity could delay resolution rather than promote efficiency.

Court Disposition

Application for separate determination of the proposed questions dismissed

Orders

  • The motion of the first, third, fifth and sixth respondents for separate determination of questions is dismissed so far as it seeks orders for the separate determination of the two proposed questions.
  • The matter be set down at 9:00 am on 23 August 1999 for argument on par 3 of the notice of motion, orders on the motions and further directions.