Phonographic Performance Company of Australia Limited v Copyright Tribunal of Australia (Costs) [2019] FCAFC 192

Phonographic Performance Company of Australia Limited v Copyright Tribunal of Australia (Costs) [2019] FCAFC 192

Because Issues 1–4 and the Power Issue were broadly separate aspects of the case, Foxtel had significant success against PPCA on the unsuccessful price-related challenges, while PPCA and the Majors succeeded on the Power Issue. Taking a broad brush approach, Foxtel was entitled to about 60% of its overall costs, achieved by requiring PPCA to pay 50% of Foxtel's costs and requiring Foxtel to pay 70%, rather than 100%, of the Majors' costs to account for overlap and avoid disadvantaging either PPCA or Foxtel due to the Majors' participation. Lump sum costs orders under r 40.02(b) were appropriate.

Jurisdiction
Australia
Judgment Date
06 November 2019
Procedural Posture
Application for Judicial Review of a Decision of the Copyright Tribunal of Australia to Vary a Licence Scheme Referred to It Under S 154(4) of the Copyright Act 1968 (cth) / Costs Following Substantive Judgment Allowing the Application in Part
Outcome
Costs apportioned and ordered as lump sums, with amounts to be agreed or determined by a Registrar failing agreement.
Legal Topics
['discretion as to Costs' 'percentage Apportionment of Costs' 'lump Sum Costs Orders' 'judicial Review of Copyright Tribunal Decision' 'licence Scheme Under S 154(4) of the Copyright Act 1968 (cth)']
['costs' 'copyright' 'administrative Law'] ['discretion as to Costs' 'percentage Apportionment of Costs' 'lump Sum Costs Orders' 'judicial Review of Copyright Tribunal Decision' 'licence Scheme Under S 154(4) of the Copyright Act 1968 (cth)']

Case Brief

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Procedural Posture

Application for Judicial Review of a Decision of the Copyright Tribunal of Australia to Vary a Licence Scheme Referred to It Under S 154(4) of the Copyright Act 1968 (cth) / Costs Following Substantive Judgment Allowing the Application in Part

Legal Issues

  1. 1 ['How costs should be apportioned after PPCA failed on Issues 1–4 but PPCA and the Majors succeeded on the Power Issue.' "Whether Foxtel should pay the Majors' costs notwithstanding alleged overlap or double representation on the Power Issue." 'Whether costs should be fixed as lump sums pursuant to r 40.02(b) of the Federal Court Rules 2011 (Cth).']

Ratio Decidendi

Because Issues 1–4 and the Power Issue were broadly separate aspects of the case, Foxtel had significant success against PPCA on the unsuccessful price-related challenges, while PPCA and the Majors succeeded on the Power Issue. Taking a broad brush approach, Foxtel was entitled to about 60% of its overall costs, achieved by requiring PPCA to pay 50% of Foxtel's costs and requiring Foxtel to pay 70%, rather than 100%, of the Majors' costs to account for overlap and avoid disadvantaging either PPCA or Foxtel due to the Majors' participation. Lump sum costs orders under r 40.02(b) were appropriate.

Court Disposition

Costs apportioned and ordered as lump sums, with amounts to be agreed or determined by a Registrar failing agreement.

Orders

  • ["The first applicant pay 50% of the second respondent's costs of the proceedings on a party and party basis, fixed as a lump sum pursuant to r 40.02(b) of the Federal Court Rules 2011 (Cth), to be agreed between those parties or, failing agreement, to be determined by a Registrar of the Court in accordance with the...