Burswood Resort (Management) Ltd v TVW Enterprises Ltd

[1994] FCA 1084

IN THE FEDERAL COURT )

OF AUSTRALIA	)
WESTERN AUSTRALIA	)
DISTRICT REGISTRY	1
GENERAL DIVISION	) No. WG 76 of 1994

B E T W E E N :  B U R S W O O D R E S O R T

(MANAGEMENT) LIMITED

Apphcant

and

TVW ENTERPRISES LIMIlTD

First Respondent

AMALGAMATED TELEVISION

SERVICES PTY LTD

Second Respondent

HSV CHANNEL 7 PTY LTD

Third Respondent

BRISBANE TV LTD

Fourth Respondent

S O U T H A U S T R A L I A N

TELECASTERS L I M r n D

Fifth Respondent

Eighth Respondent

SOUTHERN CROSS NETWORK

(TNT 9 PTY LTD)

Suth Respondent

A U S T R A L I A N C A P I T A L

TELEVISION PTY LTD

Seventh Respondent

TRACEY BOWDEN

C O R M :  FRENCH J. 4 July 1994

EX TEMPORE REASONS FOR JUDGMENT

Earlier today, the manager of the Burswood Casmo, Burswood Resort

Management Lmited, filed an application in thls Court claiming, among other things,

urgent interlocutory relief to prevent the broadcasting of a segment of the Real Life Current Affairs program on the Seven Network, dealing with the use of security and

surveilIance cameras on the casino premises. In substance, the applicant says that the respondents have obtained a compilation of security or surveillance films taken on the premises between 1987 and 1990. The compilation is said to have been prepared

without authority of the applicant and made available to the respondents without its authority. The applicant claims that it is the owner of the copyright in the compilation which, it is said, 1s a cmematograph 61m for the purposes of the Co~vrieht Act 1968. Nomthstanding that the compilation appears to have been

assembled without authority, the applicant says that it is the maker of the film for the purposes of the Act and that it is therefore the owner of the copyright. The

rebroadcastlng of it, it is said, would be an infringement of that copyright.	Alternatmely, the applicant puts its case on the basis that the dehvery of the	compilation to the respondents and theu rebroadcasting of excerpts from it constitutes
a breach of confidence on the part of some person or persons, unknown, and that the respondent may be enjoined from taking advantage of that breach.

The claim for interlocutory relief has been brought on as a matter of

urgency. Being a claim for ~nterlocutory relief it requires the applicants to estabhsh

that there is a serious question to be tned and that the balance of convemence favours the grant of the irqunction. These two facts are interrelated in that the

stronger the case for the party seeking interlocutory rehef the less the balance of convenience may have to tip in favour of that party to warrant the grant of the relief and vice versa. It is important to bear m mind also that the grant of such relief mvolves the exercise of a discretion which may involve public interest factors.

I should say that this is not a final hearing, and to that extent findings of

fact are provisional rather than final. For the purposes of this application, however, I

assume as correct the factual matters set out in the applicant's affidavits. I would add that there was no attack upon their accuracy. I am aware that if I decline to grant the relief sought then for all intents and purposes that decision may well put an end to the applicant's case, there being considerable practical difficulties in the way of it establishing any quantifiable loss arismg out of the broadcasts.

Turning to the facts of the case, the Burswood Resort Casino complex is

located on the eastern approaches to the City of Perth. It comprises a casino,

convention centre, sports arena, grounds and other amenities. The casino is operated	under a statutory hcence and subject to directions given to the licensee by what was
formerly the Casmo Control Committee and is now the Gaming Commssion of
Western Australia. The applicant manages the resort for the licensee. It operates a
security system for the casino which includes two closed circuit television systems for momtoring and surveillance of the casino and its m e d i a t e precmcts.

One secunty system is controlled by the Surveillance Department and

the other by the Security Department of the applicant. The operation of the security and surve~llance systems is described in affidavit evidence by Graham Major, the officer in charge of security. He says that the Surveillance Department is responsible for ensunng that legal standards are maintained in respect of all areas relating directly

to gaming, such as the gaming floor and the counting rooms. The Security Department is responsible for ensuring that standards are maintamed in other areas.

The surveillance systems consists of a number of cameras d~stributed throughout the

gaming floor and its immediate precincts and also points of entry and egress to and

from the casmo complex. The cameras that survey areas under the immediate

responsibility of security are connected to momtors in the security monitor office. Security does not monitor cameras in the gaming areas. Those cameras are

monitored in the Surveillance Office, however, the Survedance Department also

monitors cameras in the areas under the control of Security.

The surveillance system serves a number of purposes, which include but

are not limited to, the detection and prevention of breaches of the rules of any of the

games played in the casino, unruly or otherwise illegal behaviour such as drunkenness,

assaults or lewd behaviour, the maintenance of the casmo's dress code, vandalism in

the gardens and stealing of vehicles from the carparks. The cameras operate 24 hours a day, 7 days a week and vision is displayed on a television monitor. Only vision of certain deemed high secunty areas of the casino is automatically recorded on videotape. Apart £rom those areas, the recording of vlsion is dependent upon the discretion of the person operatmg the camera or, alternatively, upon a request being made by a member of the Security Department for a camera operator to record an incident.

The camera system is operated and the television monitors are

permanently manned by security or surveillance officers employed by the applicant.

Upon those officers observing any incident or behaviour that is thought to be

inappropriate or requiring investigation they record it and make radio contact with

security officers who are on duty throughout the complex and whom they then direct to the scene. Alternatively, secunty officers may radio a request to the camera operator to record an incident they have been called to attend. The cameras have the ability to scan the area in its field of vision so that it can track moving objects as well as being able to zoom towards or away from objects. Material recorded on the videotape is kept for a minimum of five days. Any incidents which have required the intervention of security officers or a police officer are recorded in a log book and the

tape is set aside in the event that it is required as evldence in criminal or civil proceedings. If the tape does not record any such incident then it is reused after a

minimum five days has elapsed. The video recording equipment can enable incidents

that have been recorded to be copied onto another tape. Ttus is dine frequently for	a number of purposes, including the production of tralning videos for security staff
and producing copies of files of incidents which may be the subject of court proceedings.

The security and surveillance systems are operated pursuant to

duections given by the Caslno Control Committee which was estabhshed under S. 4 of the Casino Control Act 1984. The Comnuttee was subsumed into the Gaming Commission of Western Australia, established under the Gamine: Commission Act

1987. Sectlon 24 of the Casino Control Act 1984 authorised the Committee and now

authorises the Commission to give directions to a casino licensee with respect to

various matters, including:

T h e producuon from tlme to tune to the Commsion of information

relatlng to the vanous gammg operations of the casmo licensee."

Directions given by the Casino Control Committee on 24 December 1985 were

exhibited to the affidavit of Mr Major and included the following:

"7.1 The closed cirmt television system mstalled m the Caslno shall

provlde -

(a)	light sensitive cameras, equ~pped with lenses of sufiinent magruficauon to allow the operator to clearly dlstmguish the value of the gaming chips and playng cards, wth zoom, scan and tllt capabilities effective to monitor in deed from various vantage points -
0) the gaming conducted at each ganung table in the Casino and the acuvities in the

Caslno pits;
(10	the gammg conducted at the video machmes in the Casmo;
(iii)	the operations conducted at and m the cashier's cage, c h ~ p bank and change booths;
(lv)	the operauons conducted m the Keno area;
(v)	the count process conducted m the count rooms;
6")	the movement of cash, gamlng
chips, drop boxes and vtdeo
coin buckets in the Casmo;
(ni)	the entrances and e m u to the Cas~no and the count rooms; and
(m)	such other areas as the Comrmssion may in wnung
requue; ..."

The direction goes on to require that the system provlde vldeo units with time and

date insertion capabilities suitable for effective taping of what is being viewed by each

camera in the system. It also requires the provision of monitoring rooms in the casino to be available for use at all times by the employees or agents of the licensee who are assigned to monitor the activities in the casino and, as necessary, by the Commission

and its officers and there is an adequate lightlng requirement as well. Under c1.7.3 it

is directed that:

"7.3 The Casino Operator shall ensure that the closed mcuit television

system IS useable, and IS used, for -

(a) the surveillance of the operauon and conduct of the

table games;

@)	the surveillance of the operation of the ndeo
maches;
(c)	the surveillance of the operauon of the casher's cage, c h p bank, Keno statlon and outstations and coin change booths,
(d)	the audio-wdeo taping of actlvlties in the soft count room, and the ndeo taplng of actinties in the hard count room;
(e)	the detection of cheatmg, theft, embezzlement or other Illegal actlnues in the Casmo, includmg the count rooms, change booths, Keno areas, chip bank and casher's cage;
(Q	the ndeo taplng of illegal or unusual actintles
mon~tored:  and
(g)	the surveillance of such other areas as the Commlsslon may tn wltlng requlre'

Clause 7.4 of the directions requires that:

"7.4 Upon the detection, or the detection and tapmg, of cheatmng, theft,

embezzlement or other ~llegal	activlty the Caslno Operator shall-
(a)	cause the duty Government Caslno Inspector to be

notified; and

@)	cause an officer of the State Pollce Force to be
not~fied,

as soon as is pract~cable."

There is a requirement for the maintenance of a surveillance log, under direction 7.6,

and the malung available of that log for inspection at any time by the Commission
and its officers. And in cl. 7.7 it is directed that:

"All closed circuit tclevlslon tapes which are detennlned by the Commission or its officers, m conjunction w t h officers of the State Police Force, to be of potential evldentiary value shall be securely stored in a manner acceptable to the Commlsslon."

There is a requirement for the independence of persons asslgned to monitonng or

surveillance activities and restricted access to the monitor room, catwalks and

surveillance areas.

On 9 June 1994, the applicant became aware that some person had

offered to sell to Channel 10 a videotape comprising a compilation of incidents that had occurred at the casmo. Mr Major telephoned the Director of News at Channel 10, Mr Joynt, and was told that a man called Joe had contacted Channel 10 with a

wew to selling the video to them. I take up the story from para. 15 of his affidavit. Mr Joynt informed Mr Major that Joe had said Channel 7 had offered hun $1,000 for

the tape. He informed him that he had not bought the tape but had told Joe that Burswood Resort Casmo mght be interested in buying it back. Joynt asked Major whether he should act as the go between. Major told Joynt that he would only deal with Joe and requested that Joynt arrange for Joe to ring him. Later on that day he received a message from the casino's reception that Joe would ring him later that day. At about 12.30 pm he informed an officer with the C B about the matter.

On 10 June at about 2pm, Major received a telephone call from a male
person called Joe. Joe said that an unnamed friend had invlted him to a party at

which a tape was shown. The tape came from a friend of the friend who was an ex- bouncer at the casino. Joe told Major that his friend had obtained a copy of the tape which Joe now possessed and which he was going to take to the media to sell. Joe told Major that he wanted $2,500 for the tape and that if the casmo did not buy it, he would sell it to a television station. Major told Joe that he could not make a decision

informed Joe that if the applicant brought the tape back, they would require the	to purchase the tape and that it was a decision for the Chief Executive Officer. He	name of the person who stole the tape and a guarantee that no copies of it existed. He told Joe to ring agaln at 4pm after he had spoken \nth the Chef Executive
Officer. Joe indicated that he wanted to deal through Joynt. He refused to provide
any details of his name or that of the friend who had supplied him with the tape. He agreed finally to ring between 4.30 pm and 5pm. At about 4.25pm, Major met wth the Chief Executive Officer of the casino, Mr Posey, and also with the Public Relations Officer, Mr Bnshn, and the decision was taken that the casino would not
pay any money to recover the tape.
Major received a telephone call from Joe at about 5.40pm; told him he had not been able to speak with the Chief Executive Officer. Joe sald he would nng
again between 9.30am and loam on the Monday. Subsequently, on the Monday, Major contacted an officer of the Racing and Gamng Squad and told him what had happened. On 13 June, he was told that Joe was on the line but because of
connection difficulties, Joe left a message that he would not wait and would ring again that afternoon. At about 12.40pm on 13 June, he received another call from Joe which was conducted over the speaker-phone. Mr O'Bnen from CIB and Mr Brislin were in the office during the conversation. The demand was repeated that Joe be paid $2,500 for the tape. Major told them that in his view the conduct amounted to extortion and explained to hlm that extortion was a serious offence. Joe then told him to forget it and hung up. Major reported the conversation to the Racing and
Gaming Squad. He didn't hear anything more about the tape until Brislin told hun on
30 June that he had been contacted by a reporter with Channel 7 and told that Channel 7 was in possession of the tape and intended to use it on a television
program. This was at bout 5pm on 30 June 1994.

Brishn, in his affidavit, refers to the conversation that he had with Joynt

from Channel 10 on 9 June in which he was first informed of the approach from Joe

to Channel 10 relating to the video tape and of a subsequent meetlng at 4.25pm wth the Chief Executive of Burswood Casino, Posey, and with Major. And at that tune he was told by Major that Joe had offered to sell the tape to Burswood Casino for $2,500. He was present at the telephone conversation wth Joe on the afternoon of

13 June. On 30 June, he received a telephone call from Tracey Bowden who told him

that she worked for Channel 7 and that she had obtalned the video or a copy of it. She said that Channel 7 intended to utilise the video tape or parts of it for a segment

on the telemsion program, Real L ~ e . At about 9.40 on 1 July, Bnslin telephoned Channel 7 and had a conversation wth a News Director, John Rudd. Rudd

confirmed the mdeo tape was to be uthsed in the Real Life program. In the course of the conversation Brlslin told Rudd that Burswood Casino did not condone the actions of the secunty officers shown on the video tape. Rudd told him that the tape would embarrass the casino as it showed evidence of cameras at Burswood Casino being used to invade people's pnvacy and then civil liberties. Brislin told Rudd that

removal of the video tape from Burswood Casino was unauthorised and that it was stolen property. He explained that a person had approached Burswood Casino offering to sell the tape to the Casino and that the Security Manager had formed the view that those actions constituted extortion. Rudd would not tell him how Channel 7

tape. At about l lam on 1 July, Brislin attended at the premses of Channel 7 and	had obtained the tape, nor would he tell him if any money had been paid for the
met with Tracey Bowden. Bowden showed him the mdeo tape of the incidents at Burswood Casino. He watched it for about 40 mnutes and he was asked to appear in
a television link-up on the Real Life program to discuss the use of security cameras at
Burswood Casino. He was not prepared to do so wthout a discussion wth the Chef
Executive Officer.

A little later on the same day Bowden met wth Rudd. He explained

that the Casino did not want the wdeo tape or any part of it to be alred on the Real Lfe program, and explained again that money had been demanded from the Casino

for the video tape. Rudd asked when the demand had been made but Bnslin

declined to disclose that information. Again Rudd declined to answer a question

about whether Channel 7 had paid for the video tape or how it had obtained possession of it. At that meeting wth Rudd, B n s h said that Burswood Casino

wished to have the tape returned as it considered it had been stolen from the company. Bowden or Rudd then gave him the tape and stated the story had been recorded for the Real Life program to be televised at 6.30pm on Monday, 4 July and that copies of all relevant segments from the tape had been taken for the story.

A letter of demand was sent by the applicant's solicitors on 1 July to
Channel 7 and subsequently promot~onal clips advertising a program embodying

elements of the compilation tape was broadcast both locally and nationally. The program intended for broadcast tonight (4 July), a copy of which was shown to this

Court, wll show excerpts from the compilation tape mdicat~ng that operators of the

surveillance cameras were from time to time talung close-up films of women and, in	particular, women's breasts, genital areas and buttocks. The bulk of the excerpts
shown in the program relate to those matters. The program appears to be seeking to make the point through comment from a number of persons who have viewed the excerpts that they evidence a gross misuse of the surveillance system involving intrusion into the pnvacy of the persons shown. The faces of the person shown are to
be obscured in the telecast. There are also two or three bnef incidents showing video
film of the apprehensions of persons who may be taken to have been engaging in
some disorderly or Inappropriate conduct. This is related to commentary about the difficulties of enforcing security at the Casino and, by implication, an acceptance of
the legitimate purposes of the survedlance system.
The applicant says that it has copyright in the compilation from which the excerpts are taken. I am referred in that regard to the definition of a clnematograph film in s.10 of the Couvriaht Act 1968 which defines a cinematograph
h as:

". the aggregate of the wsual Images embodled m an art~cle	or thlng so
as to be capable by the use of that an~cle	or t h g -
(a)	of being shown as a movlng plcture; or
of belng embod~ed in another article or thng by the
@)	use of wh~ch it can be so shown,

and includes the aggregate of the sounds embodled in a sound-track

assonated w t h such wsual images,"

There is no real issue before me today that the video film concerned would fall within

the descnption of a cinematograph film. The malang of a c~nematograph	film is
referred to in sub-s.22(4), which provides:

"22(4) For the purposes of thls Act-

(a) a reference to the malung of a nnematograph film shall be read as a reference to the dolng of the things necessary for the production of the first copy of the film; and

the maker of a cinematograph film 1s the person by

@) whom the arrangements necessary for the malung of
the film were undertaken."

Copyright subslsts in such a film and this 1s provlded for m sub-s.90(1) of the
Couwieht Act whch provides:

"90(1) Subject to t h Act, copyright subslsts m a nnematograph film of wh~ch the maker was a qualified person for the whole or a substantial part of the pcnod dunng whch the film was made.

(2) Without prejud~ce	to the last precedmg sub-sect~on, copyright
subslsts, subject to thls Act, m a c~nematograph	film if the film was
made in Austraha.
(3) Without prejudice to the last two preceding sub-sect~ons,	copyn~ght

subs~sts, subject to t h ~ s Act, m a published clnematograph Iilm rt the f i s t

publ~cat~on of film took placc in Australia."

A qualified person is defined in s.84 to include:

".. a body corporate ~nwrporated under a law of the Commonwealth or

of a State "

A g m , there would be no doubt, I think, or no senous argument against the

proposition, that the applicant would be a qualified person or alternatively, that the

film was a film made in Australia. The applicant says that no'mthstanding the

compilation may have been made without its authority and that it included elements

for the purposes of the Couvnaht Act. While there is an arguable question to be plainly outside the legitimate use of the surveillance system, it is the maker of the film tried on this point, it is one which I th~nk has a certain element of artificiality about it
and is not free from difficulty.

If there is copyright in the film, then it may be accepted for present

purposes that there is an arguable case that it 1s infnnged. But I must say that the scope of the arguable infringement, if any, is small and focussed upon those elements of the film which are plainly outside the proper use of the surveillance system. There is also a certain oddity about the application to tlus kind of compilation of a statute

designed to protect the fruits of intellectual labour however mundane they may be.

For example, they have been found to include m the past such tlungs as compilations

of football fixtures and the like. But acceptmg that the Act is applicable, the threatened infringement measured against the scope of the work, if it may be so called, is, in my opinion, minor.

And that br~ngs me to the question of balance of convenience. There is,

it was frankly conceded, l~ttle that the applicant can say to argue that it could suffer

pecumary loss by the showing of the film. Of course, if I refuse the interlocutory

injunction it loses its mjunctive remedy for good so far as this particular application is concerned. But on the vlew I have formed, measured as a loss flowing from an infringement of intellectual property, the loss or infringement of the applicant's

interests is small. On the other hand, the respondents have a legtmate interest in

doing that which they are licensed to do, that is, to broadcast matters which may be of

current interest to the public and there is no doubt in my mind that the matter of this	program is one of interest, not for its salacious content but for what it says about the
use to whch surveillance cameras at the Casino may be put. The balance of convemence may properly involve a consideration of the public interest in the bee flow of information and I refer to my own judgment in Advanced Hair Studios Ptv
Ltd v. TVW Entemrises Ltd (1987) 18 FCR 1 at 16-17. I do not express any view
about the apphcation of public interest factors to the subsistence or mfringement of copyright. But having regard to the scope of the alleged infringement the contrary public Interest in relation to the matter of broadcast are not persuaded that on the
strength of the copyright case I should grant the interlocutory relief which is sought. In relation to the confidentiality argument which was also advanced on behalf of the
applicant, I would say shortly that m my oplnion the treatment of this matenal as
attracting the legal protection attributed to confidential materials while it may be
arguable, does not disclose a strong case. The material which has been used to create the compilation was gathered in pursuance or purported pursuance of a direction of a statutory origin by the Casino Control Comrmttee, whose functions, as I have indicated, are now subsumed under those of the Gamlng Commission. Surveillance is

, .

carried out pursuant to a public obligation. The subject matter of the surveillance is material which is not of itself confidential but takes place in a pubhc venue. In my opinion, while there may be an arguable case for confidentiality the strength of that argument falls at about the same level if not lower than that of the argument in relation to the copyright case. And having regard to what I have said about balance of convenience and the public interest, 1 am satisfied that I ought not to grant the rehef which is being sought. So the claim for interlocutory relief WIU be dismissed.

I certify that this and the preceding

fifteen (15) pages are a true copy of

the Reasons for Judgment of his Honour Justice French.

y 7 L f

Associate: p " .. -

7

_ ..--

Date:  , ,

' A . \

Counsel for the Applicant: Mr S.J. Archer and Mr D.J. Bishop

Solicltors for the Applicant: Clayton Utz

Counsel for the Respondent: Mr C.D. Steytler and Mr W. Groves
Solicitors for the Respondent: Parker & Parker

Date of Hearing: 4 July 1994 Date of Judgment: 4 July 1994