Authors Workshop v Bileru Pty Ltd - [1989] FCA 437

3UDGMEiUi" No. 433.9...3L ,.
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CATCHWORDS

INTERLOCUTORY INJUNCTION - Motion to set aside ex part€? orders - whether orders akin to Anton Piller order and subject to same preconditions - whether orders made pursuant to Order 25 rule 2 of Federal Court Rules - whether orders which enjoin conduct in terms of cause of action alleged are oppressive - whether order to swear affidavit may expose recipient to a risk of criminal proceedings - whether such orders should be set aside - claim of privilege against self incrimination.

AUTHORS WORKSHOP and HODDER & STOUGHTON (AUSTRALIA) PTY.

LIMITED V BILERU PTY. LIHITED and DENNIS LEWY

LOCKHART J.
SYDNEY
14 JULY 1989

LIMITED DISTRIBUTION

- IN THE FEDERAL COURT OF AUSTRALIA )

)

NEW SOUTH WALES DISTRICT REGISTRY ) No. NG470 of 1989

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GENERAL DIVISION 1

IN THE MATTER OF THE COPYRIGHT
ACT, 1968 (AS AMENDED)

BETWEEN : AUTHORS WORKSHOP
First Applicant
HODDER & STOUGHTON (AUSTRALIA)
PTY. LIMITED
Second Applicant

AND : BILERU PTY. LIMITED
First Respondent

DENNIS LEWY

Second Respondent

JUDGE NAKING ORDER: LOCKHART J.
DATE ORDER MADE: 14 JULY 1989

WHERE ORDER MADE: SYDNEY

MINUTES OF ORDER

THE COURT ORDERS THAT:

1. The motion be dismissed.

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

LIMITED DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA )

)

NEW SOUTH WALES DISTRICT REGISTRY ) NO. NG470 of 1989

1

GENERAL DIVISION 1

IN THE MATTER OF THE COPYRIGHT
ACT, 1968 (AS AMENDED)

BETWEEN: AUTHORS WORKSHOP
First Applicant
HODDER & STOUGHTON (AUSTRALIA)
PTY. LIMITED
Second Applicant

AND : BILERU PTY. LIMITED
First Respondent

DENNIS LEWY

Second Respondent

14 July 1989

REASONS FOR JUDGMENT

LOCKHART J.

I propose to now give my reasons for judgment in relation to the notice of motlon brought by the respondent to these proceedings heard by this Court on 11 and 12 July 1989.

The motion seeks to set aside two of seven orders made
by the Court last Friday afternoon ex parte in chambers on
the application of the applicants. The second applicant,

Hodder & Stoughton (Australia) Pty. Limited ("Hodder and Stoughton"), is a book publisher. There is evidence that on 15 September 1987 Hodder & Stoughton entered into a publishing agreement with the first applicant, Authors Workshop, pursuant to which Hodder & Stoughton was granted the exclusive licence to print and publish the novel by John le Carre, "The Russia House", to which I shall refer as "the book". There is evidence that the owner of the copyright in the book is Authors Workshop.

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Following the signing of the agreement Hodder & ; '

Stoughton took steps to ensure that the Australian edition of the book would be distributed to retailers in Australia within a fortnight of its first appearance overseas. 15,000 copies of the book have been distributed to retailers by Hodder & Stoughton and the book should be available for purchase soon in all Australian…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Authors Workshop v Bileru Pty Ltd

Details

AGLC: Authors Workshop v Bileru Pty Ltd [1989] FCA 437
Case: [1989] FCA 437
Decision Date: 14 Jul 1989

CaseChat Overview and Summary

The case of Authors Workshop v Bileru Pty Ltd, presided over by Lockhart J., involves a dispute over copyright infringement. Authors Workshop and Hodder & Stoughton (Australia) Pty. Limited, the applicants, sought ex parte orders against Bileru Pty. Limited and Dennis Lewy, the respondents, for the alleged unauthorised sale and distribution of the book "The Russia House" by John le Carré. The respondents sought to set aside the ex parte orders on several grounds, including that they were akin to Anton Piller orders and should therefore be subject to the same stringent conditions.

The legal issues before the court were whether the ex parte orders were appropriately made, whether they were oppressive, and if they exposed the respondents to the risk of criminal proceedings. Lockhart J. held that the orders were not akin to Anton Piller orders and therefore did not require the stringent conditions usually applied to such orders. The court found that a serious question to be tried existed and dismissed the motion to set aside the orders. Lockhart J. also rejected the argument that the orders were oppressive or that they exposed the respondents to criminal liability, allowing the respondents to raise a claim of privilege against self-incrimination if they wished.

The court dismissed the motion to set aside the ex parte orders, finding that the respondents had not demonstrated that the orders were inappropriate or oppressive, nor that they exposed the respondents to a real risk of criminal proceedings. Lockhart J. suspended the operation of the order requiring the respondents to swear an affidavit until further order, allowing the respondents to potentially raise a claim of privilege against self-incrimination if they chose to do so. The motion was dismissed, and the ex parte orders remained in place.

Orders