Francis v Allen & Unwin (No 2) [2015] FCA 229

Francis v Allen & Unwin (No 2) [2015] FCA 229

Although Ms Francis discontinued after seeing evidence that made her defeat likely and was prima facie liable for the respondents' costs under r 26.12(7), the respondents had obtained the decisive photographic album before filing their defence and should have produced that material at about that time. Their failure to do so did not adequately facilitate the quick, inexpensive and efficient resolution of the dispute, justifying departure from the ordinary rule by limiting costs to those incurred up to and including 27 October 2014.

Jurisdiction
Australia
Judgment Date
16 March 2015
Procedural Posture
Costs in Discontinued Copyright and Moral Rights Proceeding / After Leave to Discontinue; Respondents' Application for Costs Heard on the Papers
Outcome
Respondents recovered some, but not all, of their costs.
Legal Topics
['discontinuance' 'costs Following Discontinuance' 'overarching Purpose' 'copyright Infringement' 'moral Rights']
['costs' 'civil Procedure' 'copyright'] ['discontinuance' 'costs Following Discontinuance' 'overarching Purpose' 'copyright Infringement' 'moral Rights']

Case Brief

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Procedural Posture

Costs in Discontinued Copyright and Moral Rights Proceeding / After Leave to Discontinue; Respondents' Application for Costs Heard on the Papers

Legal Issues

  1. 1 ["Whether the applicant should pay the respondents' costs after discontinuing the proceeding with leave of the Court." 'Whether there was a sound positive ground or good reason to depart from the prima facie position under r 26.12(7) of the Federal Court Rules 2011 (Cth).' "Whether the respondents' failure to provide the decisive photographic evidence earlier justified limiting their recovery of costs."]

Ratio Decidendi

Although Ms Francis discontinued after seeing evidence that made her defeat likely and was prima facie liable for the respondents' costs under r 26.12(7), the respondents had obtained the decisive photographic album before filing their defence and should have produced that material at about that time. Their failure to do so did not adequately facilitate the quick, inexpensive and efficient resolution of the dispute, justifying departure from the ordinary rule by limiting costs to those incurred up to and including 27 October 2014.

Court Disposition

Respondents recovered some, but not all, of their costs.

Orders

  • ["The applicant pay the respondents' costs up to and including 27 October 2014." 'Thereafter there be no order as to costs.']