Marketing Advisory Services v Tasmanian Football League Inc

REASONS FOR JUDGMENT 1 By a notice of motion dated 7 January 2003 the applicant seeks review under O 62 r 44(1) of the Federal Court Rules of a decision of the taxing officer, District Registrar Alan Parrott, made on 13 January 2003. 2 The proceeding commenced by an application filed on 25 January 2001. The applicant claimed that on 25 January 1994 it entered into an agreement with the first respondent the Tasmanian Football League Inc (TFL) for the production of weekly and annual football publications. The agreement was made on the basis that the applicant would pay a lump sum and a percentage of gross sales in consideration of the TFL granting it publishing and distribution rights. The parties were apparently unable to reach agreement for the continuation of this agreement beyond 1994. The applicant claimed that in 1995 and in subsequent years the TFL infringed its copyright in certain designs and graphics. 3 At the conclusion of the 1998 football season the second respondent Football Tasmania Ltd (Football Tasmania) was formed to take over the control and management of Australian Rules Football in Tasmania. On 25 February 1999 the TFL went into members voluntary liquidation and on 3 March 2000 it was deregistered. 4 In its application the applicant alleged that the liabilities of the TFL "devolved by novation" upon Football Tasmania and that it was liable to pay damages for loss of incomes and loss of profits by utilising the design concepts in question. 5 On 26 October 2001 Marshall J heard a notice of motion brought on behalf of Football Tasmania seeking to have the application dismissed for failure to disclose a cause of action and for being an abuse of process. His Honour upheld this application: Wheaton v Football Tasmania Limited [2001] FCA 1518 (at times the title to this proceeding seems to have been in the name of the applicant's principal Mr Jon Wheaton). His Honour ordered that the costs of Football Tasmania be paid by the applicant as follows: "(a) Those costs incurred on or before 23 September 2001 shall be paid on a party/party basis. (b) Those costs incurred after that date are to include all costs except insofar as they are of an unreasonable amount or have been unreasonably incurred so that subject to the above exceptions the second respondent will be completely indemnified by the applicant for his costs." 6 In substance his Honour held that there had been no devolution of the assets and liabilities of the TFL to Football Tasmania which at law would make the latter liable to the applicant for breaches for damages for alleged infringement of copyright. An appeal to the Full Court was dismissed: Market Advisory Services (MAS) v Football Tasmania Ltd [2002] FCAFC 165. 7 On 30 November 2001 Football Tasmania filed a bill of costs. The taxation took place on 27 March 2002 and on 7 May 2002 the taxing officer issued a Certificate of Taxation for $13,787.60 together with costs of taxation fixed at $750.00. On 31 July 2002 I made an order the effect of which was to give leave to the applicant to file out of time objections to the decision of the taxing officer pursuant to O 62 r 42. As already mentioned, by a decision on 30 January 2003 the taxing officer rejected those objections. 8 On the present application Mr John Wheaton appeared in person. He is not a legal practitioner. His objections may be summarised as follows.