Case: Walker v Citygroup Global Markets Pty Ltd [2005] FCA 1866
Outcome: referred to
The respondents contend that their conduct in this case does not fit within that description. It is said that even a finding that a party has fabricated evidence is not necessarily sufficient to warrant the grant of an indemnity costs order. That is so. An example of that can be found in Walker v Citygroup Global Markets Pty Ltd [2005] FCA 1866 at [31] - [32] . However, each case requires to be considered on its own facts. In that case, there had been a finding that a witness was unreliable which included a finding that he had fabricated some of his evidence to support the respondents' case. However Kenny J concluded at [32], in the context of the entire proceeding, that the conduct of that witness did not take the case so far outside the ordinary range of cases as to justify an award of indemnity costs. In the end, that was a matter of judgment upon the particular facts. 13 In this case, on the issues of derivation and copying, I made findings of a conscious and deliberate effort on the part of the respondents to mislead the Court on both of those matters. These were of central importance in the case. Had those attempts to mislead been successful, it would have seen the case determined in favour of the respondents. It is, relevant in this context, to consider particular facts and findings relating to the evidence, both oral and written given by Bujega, Popple, Palazesi and Biasin who were the key witnesses called by the respondents: &#8226; They were senior employees and in the case of Mr Palazzesi, the managing director of Metricon; [131] &#8226; Evidence containing important and essential factual matters going to the issue of derivation were disavowed by Bugeja at trial without explanation other than that the material could be arguably misleading; [180] &#8226; Popple too, disavowed important affidavit evidence at the trial, which went to the core of the respondents' case on derivation; [181], [182] &#8226; Exhibit JMB 28, proffered as proof of an independent derivation path, was deliberately misleading; [207] &#8226; Popple deliberately omitted important information from his affidavit because it was inconsistent with his written evidence which pointed to an independent design path; [215] &#8226; Chronology Mk I and Mk II also proffered as proof of an independent derivation path were deliberately misleading in important respects and indeed were almost entirely misleading; [218] &#8226; The explanations given by Popple and Bujega that the Prada 35 was a result of modifications to the Gallery 32 design as well as the Eldridge design were false; [223] &#8226; Bugeja deliberately copied the alfresco quadrant from the Seattle 31 despite his denial; [225] &#8226; Popple knew that Prototype 20B was copied from the Seattle 31; [226] &#8226; There was conscious copying of the Seattle 31 design and/or display home as to the alfresco quadrant by Metricon in producing Prototype 20B and in turn the Prada 35; [226], [227] &#8226; Palazzesi, in his pre-trial affidavits sought to create the false impression of his close involvement in an independently created design of the Prada 35; [275] &#8226; The explanation by Palazzesi and Popple that the Gallery design was discussed as a basis for producing the Prototype 20A, Prototype 20B and the Prada 35 was an after the fact explanation concocted in order to establish an independent design path; [277] and &#8226; Ultimately in cross-examination, Popple conceded that the other accused homes namely the Tyrell, Streeton and Connolly designs were produced by reference to Prototype 20B and the Prada 35. [290] 14 These illustrate a determined effort on the part of the respondents and their witnesses to establish a defence on one of the central issues in the case which they knew to be false. It was left to the forensic efforts of the applicants' solicitors and counsel and some belated and limited concessions made by Popple and Bugeja during their oral evidence, which led to these attempts to mislead the Court being exposed. 15 The result of this was that very significant costs have been incurred by the applicants both in preparation for and the conduct of the trial which ought never to have been required. Had this not been done then only those issues legitimately before the Court involving both questions of fact and law would have been tried. 16 The question then is whether the respondents' conduct in relation to its defence on the issues of derivation and copying constitutes a sufficient reason to take this case, in that respect, out of the ordinary, so far as concerns the exercise of my discretion on the question of costs. I am persuaded that it does. This is not a case where merely arguments 'attended by uncertainty' were before the Court as in Hamod [20]. It is not a case involving witnesses who gave evidence believing it to be true but as to which they were mistaken. It is not a case where judgment depended essentially upon the inherent probabilities of one version of events against another but not involving questions of credit. It is not even a case, such as Walker, where one witness gave fabricated evidence as to part of a case. This matter involved a concerted effort on the part of four key witnesses to present a false defence which has led to the applicants incurring very considerable costs over a long period in meeting and overcoming that defence. The submissions put to me on behalf of the respondents concerning the abandonment by the applicants of its case for infringement of the whole of the Copyright Works, as opposed to merely a substantial part and the abandonment of cases involving houses other than the accused homes, do not respond to the application for indemnity costs. There was no application by the respondents for any variation of a normal costs order by reference to these matters and I did not treat the submissions concerning those separate issues as such. I am concerned merely with the issues of derivation and copying.