University of Sydney v ObjectiVision Pty Limited [2017] FCA 554

University of Sydney v ObjectiVision Pty Limited [2017] FCA 554

Leave to make the disputed amendments was appropriate because the copyright claims under ss 36 and 38 had been in the proceeding since 2015, the amendments filled apparent gaps or provided expanded detail, the pleading deficiencies concerning identification of individuals with knowledge had been addressed, the alleged prejudice was not shown to be material or more than theoretical, and the March 2018 trial date left adequate time for the parties to prepare. Any inconvenience and additional work were adequately addressed by costs thrown away, costs of the interlocutory application, and additional security for costs.

Jurisdiction
Australia
Judgment Date
22 May 2017
Procedural Posture
Interlocutory Application in Intellectual Property Proceedings Concerning Copyright Infringement, Breach of Confidence and Related Cross Claim Amendments / Application for Leave to File a Further Amended Statement of Cross Claim, With Costs and Security for Costs Issues
Outcome
Leave to amend was granted in substance; ObjectiVision was required to pay costs thrown away and costs of the interlocutory application, and to provide additional security for costs, with formal case management directions to be settled.
Legal Topics
['leave to Amend Pleadings' 'further Amended Statement of Cross Claim' 'security for Costs' 'costs Thrown Away' 'copyright Infringement' 'constructive Knowledge Under S 38 of the Copyright Act 1968 (cth)' 'authorisation Under S 36 of the Copyright Act 1968 (cth)']
['practice and Procedure' 'costs' 'intellectual Property' 'copyright'] ['leave to Amend Pleadings' 'further Amended Statement of Cross Claim' 'security for Costs' 'costs Thrown Away' 'copyright Infringement' 'constructive Knowledge Under S 38 of the Copyright Act 1968 (cth)' 'authorisation Under S 36 of the Copyright Act 1968 (cth)']

Case Brief

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Procedural Posture

Interlocutory Application in Intellectual Property Proceedings Concerning Copyright Infringement, Breach of Confidence and Related Cross Claim Amendments / Application for Leave to File a Further Amended Statement of Cross Claim, With Costs and Security for Costs Issues

Legal Issues

  1. 1 ["Whether ObjectiVision should have leave to plead proposed paragraphs 70 and 71 alleging that the University ought reasonably to have known that making copies of TERRA infringed ObjectiVision's copyright in OPERA and that the University sold, offered for sale or distributed electronic articles reproducing OPERA." 'Whether ObjectiVision should have leave to plead proposed paragraphs 81A and 81B alleging constructive knowledge by Visionsearch for the purposes of s 38 of the Copyright Act 1968 (Cth).' 'Whether ObjectiVision should have leave to plead proposed paragraphs 83A to 83J giving expanded details of its already pleaded authorisation case against the University under s 36 of the Copyright Act 1968 (Cth).' 'Whether ObjectiVision should provide additional security for costs and pay costs thrown away and costs of the interlocutory application.']

Ratio Decidendi

Leave to make the disputed amendments was appropriate because the copyright claims under ss 36 and 38 had been in the proceeding since 2015, the amendments filled apparent gaps or provided expanded detail, the pleading deficiencies concerning identification of individuals with knowledge had been addressed, the alleged prejudice was not shown to be material or more than theoretical, and the March 2018 trial date left adequate time for the parties to prepare. Any inconvenience and additional work were adequately addressed by costs thrown away, costs of the interlocutory application, and additional security for costs.

Court Disposition

Leave to amend was granted in substance; ObjectiVision was required to pay costs thrown away and costs of the interlocutory application, and to provide additional security for costs, with formal case management directions to be settled.

Orders

  • ['The parties confer, and provide, within seven (7) days, a form of draft orders addressing all matters currently relevant to the management of the proceedings, including the matters listed at [36] of the reasons for judgment delivered on 22 May 2017.' 'The matter be listed for a case management hearing at 9.30 am...