Fraserside Holdings v Venus Adult Shops
[2005] FMCA 1984
•21 June 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| FRASERSIDE HOLDINGS & ANOR v VENUS ADULT SHOPS & ORS | [2005] FMCA 1984 |
| PRACTICE & PROCEDURE – COPYRIGHT – Application by the respondents to amend their defence – whether the proposed amendments have any prospect of success – whether the proposed amendments would be futile. |
| State of Queensland & Anor v JL Holdings Pty Ltd [1997] HCA 1 Horton v Jones (No.2) (1939) 39 SR NSW 305 |
| First Applicant: | FRASERSIDE HOLDINGS PTY LIMITED |
| Second Applicant: | CALVISTA AUSTRALIA PTY LIMITED ACN 091 673 559 |
| First Respondent: | VENUS ADULT SHOPS PTY LIMITED ACN 087 423 121 |
| Second Respondent: | TROPHER INSTALLATIONS PTY LTD |
| Third Respondent: | GEORGE ALLAN VASSALLO |
| Fourth Respondent: | JERRY GORDON |
| Fifth Respondent: | PHILIP SALVATORE DE-PRIMA |
| File Number: | SYG 3642 of 2004 |
| Judgment of: | Raphael FM |
| Hearing date: | 21 June 2005 |
| Date of Last Submission: | 21 June 2005 |
| Delivered at: | Sydney |
| Delivered on: | 21 June 2005 |
REPRESENTATION
| Counsel for the Applicant: | Mr R Cobden / Ms K Richardson |
| Solicitors for the Applicant: | Gilbert + Tobin |
| Counsel for the Respondent: | Mr G Melick SC / Ms M Avenell |
| Solicitors for the Respondent: | I & T Solicitors |
ORDERS
Application dismissed.
Respondents to pay the applicants cost of the application for amendment.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3642 of 2004
| FRASERSIDE HOLDINGS LIMITED |
First Applicant
CALVISTA AUSTRALIA PTY LIMITED
ACN 091 673 559
Second Applicant
And
| VENUS ADULT SHOPS PTY LIMITED ACN 087 423 121 |
First Respondent
| TROPHER INSTALLATIONS PTY LTD VENUS ADULT SHOPS PTY LIMITED & ORS |
Second Respondent
| GEORGE ALLAN VASSALLO |
Third Respondent
| JERRY GORDON |
Fourth Respondent
| PHILIP SALVATORE DE-PRIMA |
Fifth Respondent
REASONS FOR JUDGMENT
The respondents seek to amend their defence on what would otherwise be the last day of hearing. The grounds upon which they seek to amend their defence are not unknown to the applicant and the proposed amendments are short. They consist of an amendment to paragraph 19 of the defence to points of claim to add a subparagraph 19(c) in the following form:
“In further answer to paragraph 30 says that damages should be denied because many private films on DVD distributed for sale in Australia are not classified and/or display incorrect or misleading classification labels.”
There is a further proposed amendment to subparagraph 22(c) of the defence in the same form but referring to paragraphs 32 and 33 of the statement of claim.
It was agreed at the last hearing that before I made a determination as to whether or not I would allow this amendment I required the respondents to abide by certain orders. These included the filing of a notice of motion seeking the amendment and the filing of an affidavit which was intended to provide the necessary evidence by which the respondents would prove the matters referred to. The orders required the respondents file:
“An affidavit setting out in full by reference to documents and in the form of a schedule:
(1) Each and every alleged breach of the requirement to classify films distributed on DVD by:
-name of film;
-nature of alleged breach;
-proof of non-classification.”
The respondents have produced an affidavit by their solicitor, in fact there were two affidavits because the first did not go anywhere near strict compliance with my orders and was confusing. The second affidavit has a schedule within it listing the names of every film that has been put into evidence in this case. It then has some subheadings, these are classification, format, duration, number, and then a further two columns, duration, features and extras. Finally a column that says, proof of non-classification and nature of alleged breach.
The proof of non-classification and nature of alleged breach requires a reference back to another part of Mr Barber's second affidavit, where he says:
The second table includes:
(a) proof of non-classification/nature of alleged breach.
This column uses letter codes according to the table below.
There are five codes, (a), (b), (c), (d) and (e). Code (a) is that the film is unclassified, (b) is that the film is refused classification, code (c) is the film is classified in videotape or VHS format for a particular duration. The film in DVD format is of a different duration from the classified duration. The film and DVD format is in an altered form from that in videotape or VHS format. (d) Means that the film is classified in videotape or VHS format. The film in DVD format has extras and/or features. The film in DVD format is in an altered form from that in videotape or VHS format. (e) Means that the film in DVD format displays a misleading or incorrect classification label.
There are two important points to make. The first is that in the annexure to Mr Barber's first affidavit there are extracts from the classification database of the Office of Film and Literature classification, which can be correlated with the film titles that are contained in the schedule. But, as Mr Melick admits the vast majority of film titles are titles of films which are not distributed by Calvista in Australia and which are the titles that are either what we have described previously as parallel imports or copies of those parallel imports. The second point is that in relation to those approximately 12 titles that are directly distributed by Calvista there is no real evidence of the allegations made. Mr Barber has not deposed to his knowledge that these films may or may not run as long as the original VHS or may contain additional material. He has obtained that information from the box and compared it with the information on the classification database advanced search.
The problems do not end there. The respondents rely upon an assertion that a film which has been classified in a VHS format cannot be issued in a DVD format unless it is in exactly the same form as that issued in the VHS format. The addition of, for example, trailers of other films or interviews with the stars, of the type now common in DVDs, they argue requires the DVD to be reclassified. They argue this but they do not show me where they get that information from. On the other hand, Mr Cobden has referred me to the Commonwealth legislation, in particular section 9 of the Act which sets out the basic requirements for classification of films, sections 14, 18 and 21 and 22. Those sections do not indicate the requirement for which Mr Melick contends.
The court is sensible of the requirement laid down by the High Court in State of Queensland & Anor v JL Holdings Pty Ltd [1997] HCA 1 that amendments should usually be permitted where there is no prejudice to the other side, other than one which could be cured by costs and/or an adjournment. But it is equally clear that an amendment must have some prospects of success if it is to be allowed. It is equally inappropriate to allow an amendment which is futile: Horton v Jones (No.2) (1939) 39 SR NSW 305 at [309-310]. Although Mr Melick says that the DVDs are in evidence and that he obtained a concession from Mr Newnham that DVDs may have to be reclassified in the event that they are taken from VHS masters and additions made, I am not satisfied that this admission by a lay witness can bind the court as to the real status of the law.
I would have expected, as I had required, the respondents to make it clear in the schedule what section of what act had been breached by whatever was done to these DVDs that made them "unclassified".I take the view that if I was to allow the amendment on the basis of the evidence currently produced it would be bound to fail. To now adjourn the matter yet again to permit the respondents to put their case in order so that the appropriate evidence, if it exists, can be brought is not in the interests of justice given, in particular, that the question of illegality is still an issue in the proceedings and will have to be considered by the court. For those reasons I decline to allow the amendment. The respondents must pay the applicant's cost of the application for amendment in any event.
I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date:
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