INTERNATIONAL PHOTO V PACIFIC MAGAZINES HC AK CIV-2011-404-00841

INTERNATIONAL PHOTO V PACIFIC MAGAZINES HC AK CIV-2011-404-00841

No binding agreement existed between the parties to bifurcate liability and quantum; notwithstanding plaintiffs' apparent election of damages, the Court exercised its discretion under r10.15 to order liability be tried separately from quantum because split trials best serve efficiency and proportionality in this complex case; accordingly defendants' demands for further particulars and discovery of damages-related material were declined pending determination of liability, plaintiffs were ordered to file affidavits identifying investigatory documents relevant to the defendants' affirmative defence and the defendants' particular discovery request regarding licensing arrangements was...

Citation
openlaw-d3312ed8_573c_4e9f_9f38_1262179a6bcc.pdf
Parties
First Plaintiff: International Photo Intellectual Property Limited; Second Plaintiff: Splash News & Picture Agency Inc; Third Plaintiff: BWP Media USA Inc; First Defendant: Pacific Magazines NZ Limited; Second Defendant: Pacific Magazines Pty Limited
Court
High Court
Jurisdiction
New Zealand
Judgment Date
9 July 2012
Procedural Posture
Copyright / Interlocutory
Outcome
Interlocutory orders made: liability to be tried separately from quantum; mixed discovery orders; certain pleadings sealed; deed rectified.
Legal Topics
Parallel Importing, Exclusive Licensing, S 12(5 A)(a) Copyright Act 1994, Damages V Account of Profits, Particular Discovery, Litigation Privilege, Split Trials, Estoppel by Convention
Copyright Contract Intellectual Property Civil Procedure Evidence Commercial Law Parallel Importing Exclusive Licensing +6 more

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Parties

International Photo Intellectual Property Limited

First Plaintiff

Splash News & Picture Agency Inc

Second Plaintiff

BWP Media USA Inc

Third Plaintiff

Pacific Magazines NZ Limited

First Defendant

Pacific Magazines Pty Limited

Second Defendant

Procedural Posture

Copyright / Interlocutory

Legal Issues

  1. 1 Whether s 12(5A)(a) Copyright Act 1994 permits importation of Australian magazines into New Zealand without infringement
  2. 2 Whether IPIPL held exclusive New Zealand licensing rights and defendants breached contract/cl 3 of deed of settlement
  3. 3 Whether parties had agreed to split trials (liability first, quantum later) and could be held to that agreement

Ratio Decidendi

No binding agreement existed between the parties to bifurcate liability and quantum; notwithstanding plaintiffs' apparent election of damages, the Court exercised its discretion under r10.15 to order liability be tried separately from quantum because split trials best serve efficiency and proportionality in this complex case; accordingly defendants' demands for further particulars and discovery of damages-related material were declined pending determination of liability, plaintiffs were ordered to file affidavits identifying investigatory documents relevant to the defendants' affirmative defence and the defendants' particular discovery request regarding licensing arrangements was...

Court Disposition

Interlocutory orders made: liability to be tried separately from quantum; mixed discovery orders; certain pleadings sealed; deed rectified.

Orders

  • By consent the deed of settlement dated 23 July 2004 is rectified to record Pacific Magazines NZ Limited as the intended party to that deed.
  • Until further order paragraphs 43, 61, 111 and 113 of the amended statement of claim dated 4 August 2011 and paragraph 19.8 of the plaintiffs' reply and defence dated 1 November 2011 are sealed and not available for search except by the parties.