Cummins v Vella [2002] FCAFC 218

FEDERAL COURT OF AUSTRALIA

Cummins v Vella [2002] FCAFC 218 COPYRIGHT – infringement – paintings of flowers – whether necessary for trial judge to examine all works in issue – whether reproduction – whether more than use of style or technique APPEAL AND NEW TRIAL – appellants successful – whether application should be dismissed or orders for remitter or new trial made – error caused by respondent's counsel at trial and maintained on appeal – broad considerations of justice Copyright Act 1968 (Cth) ss 13(1), 14(1), 31(1), and 36(1) Federal Court of Australia Act 1976 (Cth) s 28 Designers Guild Ltd v Russell Williams (Textiles) Ltd [2000] 1 WLR 2416 at 2425 applied S W Hart & Co Pty Ltd v Edwards Hotwater Systems (1985) 159 CLR 466 at 473 and 484 applied Ancher, Mortlock, Murray & Woolley Pty Ltd v Hooker Homes Pty Ltd [1971] 2 NSWLR 278 at 284 and 286 applied Francis Day & Hunter Ltd v Bron [1963] Ch 587 at 618 applied Eagle Homes Pty Ltd v Austec Homes Pty Ltd (1999) 43 IPR 1 at [11] – [18] and [88] applied Commonwealth Bank of Australia v Quade (1991) 178 CLR 134 applied GREG CUMMINS v DEAN VELLA Q253 OF 2001 JOELLE CUMMINS v DEAN VELLA Q254 OF 2001 HEEREY, MANSFIELD AND HELY JJ 16 JULY 2002 MELBOURNE (HEARD IN BRISBANE)

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY Q253 OF 2001

Q254 OF 2001

BETWEEN GREG CUMMINS

APPELLANT

AND: DEAN VELLA

RESPONDENT

BETWEEN: JOELLE CUMMINS

APPELLANT

AND: DEAN VELLA

RESPONDENT

JUDGE: HEEREY, MANSFIELD AND HELY JJ

DATE OF ORDER: 16 JULY 2002

WHERE MADE: MELBOURNE (HEARD INBRISBANE)

THE COURT ORDERS THAT: 1. The appeals are allowed. 2. The judgment below is set aside and in lieu thereof it is ordered that the application be dismissed. 3. The respondent pay the appellants' costs to be taxed of the appeal and in the court below, including reserved costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.