Read v Stevens Publishing Pty Ltd [2016] FCA 459

Read v Stevens Publishing Pty Ltd [2016] FCA 459

The prospective applicant would plainly have obtained the preliminary discovery order because she had the manuscript, the relevant wills, was a descendant of Mr Joseland, and could rely on Copyright Act 1968 (Cth) s 198 to show that she may have had a right to relief. Since the prospective respondent did not advance the argument that it was entitled to refuse production as of right, and instead relied only on the applicant's alleged inability to prove copyright ownership, it was unreasonable in the relevant sense to refuse to provide the book when requested. Applying Fisher v Houston and the Lai Qin approach, the prospective respondent should pay the prospective applicant's costs.

Jurisdiction
Australia
Judgment Date
04 May 2016
Procedural Posture
Application for Preliminary Discovery Concerning Suspected Copyright Infringement; Costs / Prospective Applicant Sought Leave to Discontinue After the Prospective Respondent Produced the Book; the Court Determined Costs
Outcome
Leave to discontinue was granted and the prospective respondent was ordered to pay the prospective applicant's costs of the proceeding.
Legal Topics
['preliminary Discovery' 'discontinuance' 'costs After Discontinuance' 'unpublished Manuscript' 'copyright Ownership' 'reasonableness of Pre Litigation Conduct']
['intellectual Property' 'copyright' 'civil Procedure' 'costs'] ['preliminary Discovery' 'discontinuance' 'costs After Discontinuance' 'unpublished Manuscript' 'copyright Ownership' 'reasonableness of Pre Litigation Conduct']

Case Brief

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Procedural Posture

Application for Preliminary Discovery Concerning Suspected Copyright Infringement; Costs / Prospective Applicant Sought Leave to Discontinue After the Prospective Respondent Produced the Book; the Court Determined Costs

Legal Issues

  1. 1 ['Whether leave should be granted to the prospective applicant to discontinue the preliminary discovery proceeding.' "Whether the prospective respondent should pay the prospective applicant's costs despite r 26.12 of the Federal Court Rules 2011 (Cth)." 'Whether the prospective respondent acted unreasonably in refusing to provide a copy of the book before proceedings were commenced.' 'Whether the prospective applicant had shown that there may be a right to obtain relief for copyright infringement.']

Ratio Decidendi

The prospective applicant would plainly have obtained the preliminary discovery order because she had the manuscript, the relevant wills, was a descendant of Mr Joseland, and could rely on Copyright Act 1968 (Cth) s 198 to show that she may have had a right to relief. Since the prospective respondent did not advance the argument that it was entitled to refuse production as of right, and instead relied only on the applicant's alleged inability to prove copyright ownership, it was unreasonable in the relevant sense to refuse to provide the book when requested. Applying Fisher v Houston and the Lai Qin approach, the prospective respondent should pay the prospective applicant's costs.

Court Disposition

Leave to discontinue was granted and the prospective respondent was ordered to pay the prospective applicant's costs of the proceeding.

Orders

  • ['Leave be granted to the prospective applicant to discontinue her proceeding.' "The prospective respondent pay the prospective applicant's costs of the proceeding."]