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Rajendra Prasad v/s Indiana Publications Ltd & Another

    CA No. 652 of 2007

    Decided On, 19 March 2008

    At, Court of Appeal of New Zealand

    By, THE HONOURABLE MR. JUSTICE WILLIAM YOUNG P
    By, THE HONOURABLE MR. JUSTICE ELLEN FRANCE & THE HONOURABLE MR. JUSTICE BARAGWANATH

    For the Applicant: In Person. For the Respondent: G M Harrison, Advocate.



Judgment Text

Ellen France, J.

Introduction

[1] This is an application under s 67 of the Judicature Act 1908 for leave to appeal to this Court against a judgment of Asher J delivered on 13 April 2006: HC AK CIV 2005-404-5424. Mr Prasad sought leave to appeal from the High Court, but that was refused by Asher J on 6 November 2007. The application for leave is opposed.

Background

[2] Mr Prasad had an interest in a company called Sage Group Ltd (now World Commerce NZ Limited (in liq)). The company brought copyright proceedings against the respondents, Indiana Publications Ltd and Ravin Lal, in the District Court at Manukau in relation to its information and business directory. In a judgment delivered on 29 August 2005, Judge Blackie held that the claim failed and entered judgment for the respondents with costs: DC MAN CIV 2003-092-4034.

[3] Sage Group appealed to the High Court. Asher J, in dismissing the appeal, concluded that the appellant had not shown any error in fact or in law on the part of the District Court Judge.

[4] Mr Prasad then filed an application on his own behalf in the High Court for leave to appeal to this Court. It appears that the application was some 17 months out of time. The application was declined on the basis that Mr Prasad was not a party to the proceedings and had no ability to appear or apply for an order in the proceedings.

Does Mr Prasad have a right of appeal?

[5] The right of appeal in the present case is limited to 'a party' by s 67 of the Judicature Act. Section 67(1) relevantly provides that the decision of the High Court on appeal from an inferior court is final unless 'a party', on application, obtains leave to appeal to the Court of Appeal.

[6] The term 'party' is not defined in the Judicature Act but it is defined in r 3 of the High Court Rules as meaning:

[A]ny person who is a plaintiff or defendant in any proceeding; and includes any person added to the proceeding:

[7] It appears that Mr Prasad was, initially, the sole plaintiff when the proceedings were commenced in the District Court (they were apparently transferred to that Court from the Disputes Tribunal). However, the record indicates that on 20 July 2004, Judge Simpson made an order amending the name of the plaintiff to Sage Group and Sage Group has been the sole plaintiff since then. On this analysis, Mr Prasad is not a party and has no right of appeal in terms of s 67.

[8] Mr Prasad argues first that the proceedings in the District Court should have been brought in his name as well as that of Sage Group. However, Judge Simpson’s order reflects an affidavit sworn on 19 July 2003 by Mr Prasad in which he deposed that he was authorised to make the affidavit on behalf of Sage Group. Mr Prasad also said that an amended statement of claim had to be filed and, further, that:

2. ... Upon reviewing the proceedings my lawyer noted that the correct Plaintiff was SAGE GROUP LIMITED. He also required another Defendant, INDIANA PUBLICATIONS (NZ) LTD ('INDIANA'), to be added as a party. INDIANA are the publishers of the publication. RAVIN LAL is the editor and director and shareholder of INDIANA.

...

4. I would request that the application be granted.

5. THIS application is necessary to give effect to the directions of his Honour Judge Blackie.

[9] The amended statement of claim dated 17 June 2004 similarly records Sage Group as the sole plaintiff. That amended statement of claim says that Sage Group carries on the business of publishing the relevant work to which the copyright claim relates and alleges breaches of Sage Group’s copyright in the work.

[10] It appears therefore that Sage Group became the sole plaintiff on Mr Prasad’s application in a situation where he had the benefit of legal representation. Even if the removal of Mr Prasad as a plaintiff was in error, it is simply too late now to raise that point.

[11] Mr Prasad’s second argument is that he has status to make the present application as the 'first' copyright owner in terms of s 124 of the Copyright Act 1994. Section 124 relevantly provides:

124 Exercise of concurrent rights

(1) Where proceedings for infringement of copyright brought by the copyright owner or an exclusive licensee relate (wholly or partly) to an infringement in respect of which the copyright owner and the exclusive licensee have concurrent rights of action, the copyright owner, or as the case may be, the exclusive licensee may not, without the leave of the court, proceed unless the other is either joined as a plaintiff or added as a defendant.

[12] Mr Prasad’s argument is that Sage Group was the exclusive licensee of copyright in which he was the copyright owner.

[13] Asher J at [3] and [4] of the leave judgment rejected this argument on the basis that the appeal rights were those of the parties to the proceeding and that section 124 did not give a person who claims to be a copyright owner the ability to seek to appeal a decision to which he or she was not a party. We agree. Section 124 does not confer any appeal right on non-parties and does not alter the appeal regime created by s 67.

Costs

[14] The respondents seek costs in this Court. There is no reason why costs should not follow the event. Mr Prasad argued that he brought the applicatio

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n on the basis that he was the copyright owner and that the company was the 'alternative plaintiff'. However, that is not how the proceedings were conducted in the District Court and, by substituting the company as plaintiff, Mr Prasad had the benefit of avoiding any personal liability for costs in the District Court. Further, the respondents made it plain from the outset that they opposed the application largely for the reasons given by Asher J. In these circumstances, an award of costs is appropriate. Mr Prasad must pay the respondents the sum of $1,500 (in total) in costs plus the usual disbursements.
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