Chou v Metstech Pty Ltd

1. The appellants pay the first to fourth respondents' (the Metstech Parties) costs of the appeal and the third cross-appeal.
2. Mr Park pay the Metstech Parties' costs of the first cross-appeal and the third cross-appeal.
3. Mr Martin pay the Metstech Parties' costs of the second cross-appeal and the third cross-appeal. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

THE COURT: 1 In Chou v Metstech Pty Ltd [2023] FCAFC 205, we set a timetable for written submissions and any affidavit(s) on the question of costs of the appeal and cross-appeals, and indicated that we anticipated deciding the question of costs on the papers. Written submissions have now been filed and served by the active parties to the appeal and cross-appeals. We have used the same defined terms as we adopted in the principal judgment, and references to paragraph numbers below are to the paragraphs in that judgment. 2 Grounds 1 and 2 of the appeal, concerning the non-joinder of "Yokao", were dismissed, principally because the Chou Parties were not permitted to raise those issues on appeal in circumstances where the issues had not been raised below: see [64]-[73] and [81]. There was no utility in Grounds 3 to 10 of the appeal, because those grounds concerned findings as to copyright ownership in circumstances where the Chou Parties were not claiming to be the copyright owner: see [88]-[94]. We decided in the interests of clarity to make amendments to the declaration concerning copyright ownership made by the primary judge, and we did so to reflect the true effect of the declaration in the circumstances in which it had been made: see [74]-[80]. 3 Grounds 1 and 2 of Mr Martin's cross-appeal (being the second cross-appeal) and Grounds 1 to 5 of Mr Park's cross-appeal (being the first cross-appeal) supported and supplemented Grounds 1 to 10 of the main appeal. The fact that Grounds 1 to 10 of the main appeal either failed or did not arise for determination had the result that those grounds of the cross-appeals were also unsuccessful or did not arise. 4 In relation to the issue as to whether there was sufficient evidence of loss and damage to justify an inquiry as to damages, we dealt with that matter at [95]-[104] in upholding the conclusion of the primary judge. Accordingly, Ground 11 of the appeal, Ground 6 of Mr Park's cross-appeal and Ground 4 of Mr Martin's cross-appeal were unsuccessful. 5 In relation to the challenge made to the primary judge's orders as to costs, we held at [105]-[111] that no appellable error had been established. Accordingly, Grounds 12 and 13 of the appeal, and Grounds 7 and 8 of the cross-appeals by Mr Park and Mr Martin respectively, failed. 6 The balance of Mr Martin's cross-appeal was withdrawn in the course of oral addresses before us on appeal: see [115]. 7 The cross-appeal filed by the Metstech Parties (being the third cross-appeal) did not need to be decided because it would have had utility only if the Chou Parties had succeeded on some of their other grounds. While the relief sought in that cross-appeal was different to the relief granted by the primary judge, the relief granted by the primary judge achieved the same substantive purpose: see [113]-[114]. Mr Park and Mr Martin submit that the first time the Metstech Parties said that it may not be necessary to consider the tortious conspiracy aspect of their cross-appeal if the court was not persuaded to discharge the original injunctions was in the Metstech Parties' reply submissions dated 11 September 2023, by which time all the other written submissions had been prepared and work done in addressing that cross-appeal. However, in our view, the cross-appeal by the Metstech Parties was plainly defensive in nature in that it arose for consideration only if the Chou Parties' appeal succeeded, at least in part. The main appeal by the Chou Parties was supported actively by Mr Park and Mr Martin in their cross-appeals. 8 Accordingly, as a matter of substance, the Metstech Parties have been successful in opposing the appeal and cross-appeals against them. The amendments which we made to the declarations were for the sake of clarity and do not detract from the substantial success of the Metstech Parties. In those circumstances, the Metstech Parties should be awarded their costs of each of the main appeal and the cross-appeals filed by Mr Martin and Mr Park. 9 As between the Chou Parties, on the one hand, and Mr Martin and Mr Park, on the other hand, their interests and contentions on the appeal were aligned, and each supported the others on the main issues which arose, as to which they have all been unsuccessful as a matter of substance. Accordingly, there should not be any order as to costs of the appeal or the cross-appeals as between the Chou Parties, on the one hand, and Mr Martin and Mr Park, on the other hand. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Yates, Downes and Jackman.