Insight SRC IP Holdings Pty Ltd v Australian Council for Educational Research Ltd (No 2) [2013] FCAFC 73

Insight SRC IP Holdings Pty Ltd v Australian Council for Educational Research Ltd (No 2) [2013] FCAFC 73

ACER acted unreasonably in opposing the appeal after the 18 October 2012 offer because it was aware that substantial damages were likely, the primary judge had assessed Insight's loss at $130,000 on a related premise, and the offer was a reasonable attempt to resolve the litigation. ACER also acted unreasonably in not accepting the 12 April 2013 Calderbank offer because neither ground of the cross-appeal had substance and ACER had no real prospect of overturning the primary judge's factual finding that Dr Hart owned the copyright. Given ACER's unreasonable conduct and tactical choice to contest the appeal, it was not appropriate to grant a costs certificate under s 6(2) of the Federal...

Jurisdiction
Australia
Judgment Date
12 July 2013
Procedural Posture
Appeal and Cross Appeal From the Federal Court of Australia / Determination on Written Submissions of Damages, Costs of the Appeal and Cross Appeal, and Costs Certificate After Liability Reasons
Outcome
Appeal allowed, cross-appeal dismissed, damages and costs determined, and ACER's application for a costs certificate refused.
Legal Topics
['indemnity Costs' 'calderbank Offer' 'costs Certificate Under Federal Proceedings (costs) Act 1981 (cth)' 'quantification of Damages' 'appeal Costs' 'cross Appeal Costs']
['costs' 'intellectual Property' 'copyright' 'damages'] ['indemnity Costs' 'calderbank Offer' 'costs Certificate Under Federal Proceedings (costs) Act 1981 (cth)' 'quantification of Damages' 'appeal Costs' 'cross Appeal Costs']

Case Brief

Summary, issues, holding and outcome

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Procedural Posture

Appeal and Cross Appeal From the Federal Court of Australia / Determination on Written Submissions of Damages, Costs of the Appeal and Cross Appeal, and Costs Certificate After Liability Reasons

Legal Issues

  1. 1 ['Whether judgment should be entered for Insight Holdings and Insight in the amount of $130,000 for damages.' "Whether ACER should pay indemnity costs for the appellants' costs of considering and answering ACER's written submissions on the appeal." 'Whether ACER should pay indemnity costs for the cross-appeal after 19 April 2013 following rejection of a Calderbank offer to withdraw the cross-appeal with no order as to costs.' 'Whether ACER should be granted a costs certificate under s 6(2) of the Federal Proceedings (Costs) Act 1981 (Cth).']

Ratio Decidendi

ACER acted unreasonably in opposing the appeal after the 18 October 2012 offer because it was aware that substantial damages were likely, the primary judge had assessed Insight's loss at $130,000 on a related premise, and the offer was a reasonable attempt to resolve the litigation. ACER also acted unreasonably in not accepting the 12 April 2013 Calderbank offer because neither ground of the cross-appeal had substance and ACER had no real prospect of overturning the primary judge's factual finding that Dr Hart owned the copyright. Given ACER's unreasonable conduct and tactical choice to contest the appeal, it was not appropriate to grant a costs certificate under s 6(2) of the Federal...

Court Disposition

Appeal allowed, cross-appeal dismissed, damages and costs determined, and ACER's application for a costs certificate refused.

Orders

  • ['Order 1 made on 27 September 2012 by the primary judge be set aside and in lieu thereof it be ordered that the respondent pay the applicants the sum of $162,500 (being $130,000 in general damages and $32,500 in additional damages).' "The respondent pay the appellants' costs of the appeal of considering and...