Nine Films & Television Pty Ltd v Ninox Television Limited [2005] FCA 249

Nine Films & Television Pty Ltd v Ninox Television Limited [2005] FCA 249

Television New Zealand Limited was a proper party because the applicants sought a final declaration of non-infringement affecting copyright in Dream Home jointly owned by Television New Zealand Limited and Ninox Television Limited. Such declaratory relief should be made, if at all, after the relevant factual and legal issues have been determined, not by consent before hearing. Retaining Television New Zealand Limited caused no undue hardship because it could be excused from further attendance, and the proceeding was not an abuse of process.

Jurisdiction
Australia
Judgment Date
16 March 2005
Procedural Posture
Practice and Procedure Motion by the Second Respondent to Set Aside Originating Process and Service, Dismiss Proceedings as Against It, or Remove It as a Party / Amended Notice of Motion Heard on 8 March 2005; Reasons for Dismissal Delivered on 16 March 2005
Outcome
The second respondent's Amended Notice of Motion was dismissed; Television New Zealand Limited remained a party and was excused from further attendance until it applied to participate further; costs were reserved.
Legal Topics
['removal of Party' 'service Outside Jurisdiction' 'declaratory Relief' 'joint Copyright Ownership' 'groundless Threats of Copyright Proceedings' 'discovery' 'abuse of Process']
['practice and Procedure' 'copyright' 'trade Practices'] ['removal of Party' 'service Outside Jurisdiction' 'declaratory Relief' 'joint Copyright Ownership' 'groundless Threats of Copyright Proceedings' 'discovery' 'abuse of Process']

Case Brief

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Procedural Posture

Practice and Procedure Motion by the Second Respondent to Set Aside Originating Process and Service, Dismiss Proceedings as Against It, or Remove It as a Party / Amended Notice of Motion Heard on 8 March 2005; Reasons for Dismissal Delivered on 16 March 2005

Legal Issues

  1. 1 ['Whether the originating process and its service should be set aside as against Television New Zealand Limited, or the proceedings dismissed as against it, or it removed as a party.' 'Whether Television New Zealand Limited was a proper party where the applicants sought a declaration of non-infringement affecting copyright jointly owned by Ninox Television Limited and Television New Zealand Limited.' "Whether Television New Zealand Limited's consent to a declaration before trial was a sufficient basis to remove it from the proceeding." 'Whether retaining Television New Zealand Limited as a party imposed undue hardship or amounted to an abuse of process.' 'Whether discovery considerations supported retaining Television New Zealand Limited as a party.']

Ratio Decidendi

Television New Zealand Limited was a proper party because the applicants sought a final declaration of non-infringement affecting copyright in Dream Home jointly owned by Television New Zealand Limited and Ninox Television Limited. Such declaratory relief should be made, if at all, after the relevant factual and legal issues have been determined, not by consent before hearing. Retaining Television New Zealand Limited caused no undue hardship because it could be excused from further attendance, and the proceeding was not an abuse of process.

Court Disposition

The second respondent's Amended Notice of Motion was dismissed; Television New Zealand Limited remained a party and was excused from further attendance until it applied to participate further; costs were reserved.

Orders

  • ['The Motion is dismissed.' 'The costs of this Motion are reserved.' 'Television New Zealand Limited is excused from further attendance until such time as it may apply to participate further in the proceeding.']