Melbourne University Publishing Ltd v Williamson

REASONS FOR JUDGMENT 1 The parties have agreed to consent orders providing in effect judgment against the respondent by the applicant publishers for infringement of copyright, damages to be assessed in default of agreement, preservation of property and delivery up of infringing works. The only matter in dispute is a question of costs. The applicants are seeking an order that the respondent pay the applicants' costs of the proceeding on a party and party basis, to be taxed in default of agreement. 2 Mr Peterson, for the respondent, says - and this is not in dispute - that the application was served without notice; there was no letter of demand. Immediately on receipt of it his client sought his advice and Mr Peterson advised him to take the course which has been reflected in the consent orders. 3 The background of this is that the respondent operates a small photocopying shop. At the shop there are notices warning against infringement of copyright and advising that persons infringing copyright do so at their own risk. In the circumstances, Mr Peterson says there should be no order as to costs. Mr Rothnie for the applicant says that had a letter of demand been sent it might have constituted unjustified threats under s 202 of the Copyright Act 1968 (Cth). Mr Rothnie says it is only speculation that if such a letter had been sent the agreement would have been reached in the way that it has. 4 I accept Mr Peterson's submissions. It seems to me that it is more than speculation that had a letter of demand been sent the parties would have reached the common sense resolution that they have. In fact, it is a widespread and salutary practice in all forms of civil litigation for a prospective plaintiff to write a letter of demand, for the very reason that a prospective defendant can take advice and, if there is no defence, save the substantial costs that would be involved even for a brief undefended application like the present one. I do not think that there was any real prospect of the applicants infringing the provision against unjustified threats because ex hypothese their threats would have been justified since there seems to have been no answer to the copyright infringement claim. 5 So, for those reasons, I will make the orders sought except that there will be no orders for costs.