Chasil Ltd v Ferald Pty Ltd

[1985] FCA 444

444	NOT INTENDED	FOR DISTRIBUTION
IN THE FXEDERAL COURT

OF AUSTRALIA	j
L4ESTEP.N AUSTRALIA	1

DISTRICT REGISTRY )

GENERAL	DIVISION	)
B E T W E E N :

\ \

CALSIL LIMITED

Applicant

and FEP.ALD PTY. LIMITEDZ-~' * I

M: TOOHEY J.	j
I

12 July 1985

M TEMPORE REASONS FOR JUDGMENT

The motion before the court raises some quite important

and difficult questions, but It is necessary that I dispose of the

matter now, at least for the purposes of any interim relief that

may be granted to the applicant.

I should say at once that I am satisfied from the

material before me that the applicant has made out a prima facie

case of a contravention of s.52 of the Trade Practices Act 1974.

On the basis of current authorities, it is perhaps unnecessary for

me to go that far, and it 1s enough for me to say that the

material furnished by the applicant has raised a serious question

to be tried. Hnwever, I go further than that because the whole

tenor of the video 1s that the problems encountered with the house

3t Wanneroo featured in the video were due, if not wholly at least

2 .

substantlallv, to the use of sand lime brlcks. That appears more

than once in the transcript of the commentary accompanying the

vldeo, in particular the commentary in respect of	30 May 1985 and
4 June 1985.

There is sufflcient in the material furnished through

Mr. Schaffer to show that the applicant is the principal

manufacturer of calcium silicate bricks in this state. Indeed

there is a positive statement by Mr. Schaffer that the bricks

shown in the video are bricks produced by his company, although

that would not of itself be enough because what he may be able to

identify through his own particular knowledge is not something

which the public would necessarily identify. But the fact that

the applicant is the principal manufacturer of calcium silicate

bricks in this State is, I think, enough to show that there is a

reasonable likelihood that anyone seeing the video would identify the bricks in question with bricks produced by or bricks similar to those produced by the applicant.

I am satisfied from the affidavit of Mr. Thorpe that to

the extent that the video attributes the faults in this building

to the type of bricks used, which it undoubtedly does, it is false

and that the problems encountered with the house in question were

due largely to a failure to follow the roof detail provided by the

builder. In any event they were not the result of any defect in

the quality of the bricks provided. That being the case, I have

little hesitation in granting interim relief in terms of a

restraint on the respondent from publishing or distributing the

video. That may not cure that which has been done already,

3 .

because It is apparent that the viden has been distributed to at

least t w o televi5ion stations. Certainly an order against the

respondent prohibiting any further dlstribution would serve some

purpose; and I would think that, once it were known that the

lnyunction had been granted, anyone in possession of the video

would give careful thought to any publication of it because of the

likelihood of action by the	applicant	against	that	person,
organisation or company.

My real concern lies in the additional relief which is

sought by the applicant, in terms that the respondent permit

representatives of the applicant to go onto its premises for the

purpose of searching those premises and removing into the custody

of the applicant's solicitors the material that is described in

the minute of order. The application goes further, although I

think not the minute, by seeking an order that the production

manager of the respondent or some other proper officer disclose on

oath to the applicant the identity of the person or persons who

commissioned the respondent to make the video.

This type of relief is said to be justified by what has

become known through the authority of the particular case in which

such relief was granted, as an Anton Piller order. Two questions

seem to me to arise in that regard. One is the jurisdiction of this Court to make such an order; the second is whether, assuming jurisdiction to exist. such an order is appropriate.

As to the first question, I am satisfied that 6.23 of

the Federal Court of Australia Act 1976 which reads:

. . I

4 .

"The Court has power in relation to matters in

which it has ]urlsdiction to make orders of

such kinds, including interlocutory orders,

and to issue or direct the issue of writs of

such kinds as the Court thinks appropriate."

confers sufflcient jurisdiction on this Court to grant the relief

sought by the applicant. Although Ellicott J. was concerned with

a different form of in~unction in H - v. Somers (1984) 68 F.L.R.

171. I am satisfied that the reasoning which prompted his Honour

to hold that jurisdiction exlsted in that case is apposite here.

That brings me to the next and more difficult question

of whether relief should in fact be granted in the present case.

As I suggested to Mr. Ipp, counsel for the applicant, in the

course of argument, Anton Piller orders have been made for a

number of reasons, including the preservation of material that is

likely to be destroyed (material which is crucial to the

applicant's or plaintiff's cause of action) or in the case of

pirated records or pirated tapes in the possession of a

distributor where the order would assist the person who complains

of the pirating of the material to learn something about its

source and thereby better equip himself to recover damages, or	for
that matter to obtain injunctive relief.

Mr. Ipp has sought to persuade me that the principles

in those cases are appllcable here, but I am afraid I am not persuaded. I recognise the submission that without such an order material in the possession of the respondent may be destroyed, but

there is nothing before me to suggest that that risk is any

greater in the present case than it is in any other case. Mr. Ipp

5.

has put that matter to me very much In terms that a respondent who

is of a mlnd to do what this respondent has done - that is to send

unsolicited material to television stations, material which it may

be inferred has been prepared at the instance of some other party

- is likely to destroy any relevant material in its possession.

But those are strong words and I would require more than is

presently before me to draw that inference.

It has also been said that without an order of this

sort, the applicant may not be able to ascertain the source of the

video, that is the name of the person who commissioned it. That

may or may not be so; I say nothing about what might be obtained

discovery, way of by interrogatories, or indeed by

cross-examination if that point were reached. But I am not

satisfied that I should make an Anton Piller order simply to allow

the applicant to obtain the name of the person who has

commissioned the respondent to prepare the video, if indeed such	a
person exists.

For those reasons, while I am prepared to grant interim

relief to the applicant, I am not prepared at this stage to grant

relief of the sort that the applicant has asked for in paras.2 and

3 of its minute. I say "at this stage" only to make it clear that

the matter may arise for further argument later on the basis of

other material, and I wish to say nothing to suggest that the

applicant may not be in a position to renew this application at a

later stage. I say that, appreciating of course that the basis of

the Anton Piller drder may largely have disappeared by then. But

questions may arise between now and the hearing, and indeed at the

hearlnu ~tself, of the	sort that have been canvassed here this
afternoon.

In the light of those reasons, Mr. Ipp, I am prepared to

grant on an interim basls, bearing in mind that thls is an ex

parte application, an order in terms of para.1 of the minute. I do not know whether you seek any expanslon of that order that is

not inconsistent with the reasons I have delivered this afternoon.

I am not suggesting that the minute itself is not adequate, but I

simply give you that opportunity since I have not been prepared to

grant orders in terms of paras.2 and 3 .

Mr. Ipp:	Thank you, your Honour. I think I would be satisfied
with that.

Toohey J.: I propose that there be an order in terms of para.1,

but deleting in lines 4 and 5 the words "the determination of this

proceeding or earlier" and substituting simply the word "further".

So counsel are clear	as to what is involved, para.1 would then
read :

The respondent, its agents, servants,

officers or employees and each of them be

restrained, and an injunction is hereby

granted restraining them and each of them

until further order from publishing or

causing to publish or distributing or causing

to be distributed the documentary, Safe as

Houses, A Special Report.

There will then be a further paragraph, para.2:

The further hearing of the application for

interlocutory relief be adjourned until

Friday, 26 July, at 10.15 a.m.

Then 3:

Liberty to apply on 48 hours notice.

Then 4:

The applicant serve on the respondent as soon as reasonably possible a copy of this order and of the application and affidavits in

support, save for exhibit JMSZ to the

affidavit of	John Michael Schaffer sworn 12
July 1985.

Then 5:

On request by the respondent the applicant

make available for viewing by the respondent

a copy of the video tape, exhibit JMSZ to the

affidavit of	John Michael Schaffer sworn	12
July 1585.

and 6:

Costs of today's hearlng be reserved.

I c e r t i f y t h a t t h i s and the six preceding

pages are a t r u e copy of the Reasons for

Judgment	herein of his	Honour	Mr.	J u s t i c e
Toohey

Associate