The battle to keep “The Secret” continues
The dispute between the creator of “The Secret”, Rhona Byrne and her company TS Productions LLC and the Australian director Drew Heriot concerning the copyright in the film and the related book continues in Australia. Earlier this year, Justice Sundberg of the Federal Court of Australia, ordered a stay of the Australian proceeding pending the outcome of the US proceeding.
A major issue before his Honour was whether in the US proceeding, the US court would apply the law of that country or Australian law. After considering the rival opinion evidence of two American lawyers, his Honour found that US law would be applied.
After argument had concluded, but before Justice Sundberg delivered his judgment, the US District Court delivered a judgment declining to stay the US proceeding. The judge, the Honourable Suzanne B Conlon, reached the same conclusion as Sundberg J as to the choice of law in the US proceeding. Judge Conlon made various procedural directions including discovery and other dates for joint pre-trial orders.
The matter has again returned to the Federal Court of Australia where TS Production LLC has sought leave to appeal to the Full Court from the judgment and orders of Justice Sundberg. The issue before Justice Heerey was not the substantive question of leave but whether the application for leave should be dealt with by a single judge or by the Full Federal Court. Order 52 r2AA of the Federal Court Rules requires some ground to be shown as to why an application for leave to appeal should be determined by the Full Court. Heerey J noted that this case could not be “characterised as a minor interlocutory squabble over discovery or the like” but rather one in which Sundberg J’s orders could give rise to important consequences for the parties. Despite various contentions from Drew Heriot’s counsel that the only prejudice to the applicant was the cost of the US proceeding and that there was no “substantial injustice” to the applicant that would warrant the appeal being considered by the Full Court, Heerey J granted TS Production’s request on the basis that Sundberg J’s judgment deals with substantial legal issues which are appropriate for resolution by a Full Court.
A major issue before his Honour was whether in the US proceeding, the US court would apply the law of that country or Australian law. After considering the rival opinion evidence of two American lawyers, his Honour found that US law would be applied.
After argument had concluded, but before Justice Sundberg delivered his judgment, the US District Court delivered a judgment declining to stay the US proceeding. The judge, the Honourable Suzanne B Conlon, reached the same conclusion as Sundberg J as to the choice of law in the US proceeding. Judge Conlon made various procedural directions including discovery and other dates for joint pre-trial orders.
The matter has again returned to the Federal Court of Australia where TS Production LLC has sought leave to appeal to the Full Court from the judgment and orders of Justice Sundberg. The issue before Justice Heerey was not the substantive question of leave but whether the application for leave should be dealt with by a single judge or by the Full Federal Court. Order 52 r2AA of the Federal Court Rules requires some ground to be shown as to why an application for leave to appeal should be determined by the Full Court. Heerey J noted that this case could not be “characterised as a minor interlocutory squabble over discovery or the like” but rather one in which Sundberg J’s orders could give rise to important consequences for the parties. Despite various contentions from Drew Heriot’s counsel that the only prejudice to the applicant was the cost of the US proceeding and that there was no “substantial injustice” to the applicant that would warrant the appeal being considered by the Full Court, Heerey J granted TS Production’s request on the basis that Sundberg J’s judgment deals with substantial legal issues which are appropriate for resolution by a Full Court.
Labels: australian copyright
posted by Virginia Beniac-Brooks at
4:17 PM
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