1st Call Video Rights Ltd v CBL Videl P/L

[1993] FCA 60

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JUDGMENT No. ........ ........ .. I ........ ....

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY

GENERAL DIVISION	No. G181 of 1992
BETWEEN :

1ST CALL VIDEO RIGHTS LTD

(A.C.N. 010 875 340)

CBL VIDEL PTY. LTD.

(A.C.N. 011 024 721)

Respondent

MINUTES OF ORDER

JUDGE W I N G ORDER:	Cooper J.
WHERE MADE:	Brisbane
DATE OF ORDER:	12 February,
THE COURT ORDERS :-

1.        That the motion for interlocutory orders is dismissed.

2.        That the costs of the motion for interlocutory orders be reserved to the trial judge.

3.        That the applicant pay the respondent's costs of Mr. Shannon for his attendance to be cross-examined on his affidavit in these proceedings today.

1. That the applicant pay the respondent's costs of preparation, if any, thrown away on the applicant's motion for final judgment.

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5.        That the respondent maintain pending trial of the action financial records recording the profits made from the exploitation of the video masters in issue in these proceedings, being the videos listed in list C, which is exhibit G to the affidavit of Ms. Curtis.

Note:  Settlement and entry of orders is dealt with in
Order 36 of the Federal Court Rules.

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IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY

GENERAL DIVISION	No. G181 of 1992
BETWEEN :

1ST CALL VIDEO RIGHTS LTD

(A.C.N. 010 875 340)

Applicant

CBL VIDEO PTY. LTD.

(A.C.N. 011 024 721)

Respondent

CORAM :	Cooper J.
PLACE :	Brisbane
W:	12 February, 1993

EXTEMPORE REASONS FOR JUDGMENT

This is an application for an interlocutory mandatory injunction requiring the respondent to deliver up master video tapes and copies in the possession of the respondent in which the applicant claims copyright and ownership of the masters.

The respondent by its defence denies the applicant's

entitlement to copyright and itself claims ownership of the

masters pursuant to an agreement with the applicant entered	into in about April, 1990.
The videos are materials in which copyright can subsist under the Copvriaht Act. The applicant has tendered into evidence licence agreements, which, on their face, give
the licensee certain rights to the commercial exploitation of the videos. The applicant contends that in accordance with industry practice the applicant retains physical ownership of

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the masters at the conclusion of the licence period.

The respondent submits there is no evidence of the copyright of the licensor to the applicant and that in terms some of the agreements name Ms. Curtis as the licensee and not the applicant. The respondent further claims a right to exploit the videos and any copyright in them under an agreement made between the applicant and the respondent. Nonetheless, I am satisfied that the material does raise at an interlocutory stage a serious question to be tried as to the applicant's right to copyright in circumstances where the respondent does not contend copyright in any identified third party, or, in itself.

The applicant claims ownership of the masters, which ownership is disputed by the respondent. The respondent claims that such property as the applicant has or had in the masters, passed to the respondent in consideration of the issue of shares in the respondent to Ms. Curtis. Implicit in

a result of an agreement with the applicant is the admission

the claim by the respondent to the property in the masters as

that the applicant had a title or a better title, to the masters than the respondent, to pass property to the resopndent. I am of the opinion that there is a serious question to be tried as to the applicant's claim to property in the masters.

Simply because I am satisfied that there is a triable issue does not mean, however, that I am satisfied to the requisite degree as to the strength of the applicant's claim and prospects of success on trial, such that I would, assuming the balance of convenience was in favour of making an order, make a mandatory interlocutory injunction. It is unnecessary to pursue this matter further because I am satisfied that the balance of convenience is against making the order.

There is no material to show that a master video is unique or that the applicant will suffer any injury pending trial which cannot be remedied by an award of damages or on account of profits. There is no material to suggest that if an award of damages or an account of profits is ordered in favour of the applicant the respondent will be unable to satisfy the judgment.

The videos form part of the working stock in trade
of the respondent and delivery up pending trial would cause

the respondent financial loss. The evidence as to the financial worth of the applicant as it presently stands gives

me cause for concern that any undertaking as to damages would be of any worth, and that if damages were awarded in the respondent's favour, those damages would be satisfied.

This application arises out of a breakdown in the relationship between Ms. Curtis and the other shareholders of the respondent. That relationship ended in July, 1991, and demand for the videos presently claimed in the proceedings was not made until the issue of proceedings in December, 1992. There is no explanation for the delay in the applicant's material.

The applicant's position is adequately protected by an order requiring that the respondent maintain, pending trial of the action, financial records recording the profits made from the exploitation of the videos in issue in these proceedings.

As I have stated, for the reasons above, the balance of convenience is against the making of an order at this stage.

THE COURT ORDERS :-

l.	That the motion for interlocutory orders is dismissed.
2.	That the costs of the motion for interlocutory

orders be reserved to the trial judge.

3.         That the applicant pay the respondent's costs of Mr. Shannon for his attendance to be cross-examined on

his affidavit in these proceedings today. .

That the applicant pay the respondent's costs of preparation, if any, thrown away on the applicant's motion for final judgment.

That the respondent maintain pending trial of the action financial records recording the profits made

from the exploitation of the video masters in issue in these proceedings, being the vjdeos listed in list C, which is exhibit G to the affidavit of Ms. Curtis.

I certify that this and the four ( 4 )

preceding pages are a true copy of the reasons for judgment herein of the Honourable Mr. Justice Cooper.

Date: 22 February, 1993

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Associate

Counsel for the Applicant:	Mr. S. Sheaffe
Solicitors for the Applicant:	English & Co.
Counsel for the Respondent:	Mr. Perry
Solicitors for the Respondent:	McCullough Robertson
Hearing Date:	12 February, 1993