G-a-m-e Network Pty Ltd v Herald and Weekly Times Ltd

[1999] FCA 1857

FEDERAL COURT OF AUSTRALIA

G-a-m-e Network Pty Ltd v Herald & Weekly Times Ltd
[1999] FCA 1857 

THE G-A-M-E NETWORK PTY LIMITED v THE HERALD & WEEKLY TIMES LIMITED & ORS

NO. V 708 OF 1999

HEEREY J
16 DECEMBER 1999
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V708 OF 1999

BETWEEN:

THE G-A-M-E NETWORK PTY LIMITED (ACN 088 403 918)
Applicant

AND:

THE HERALD & WEEKLY TIMES LIMITED
(ACN 004 113 937)
First Respondent

NEWS LIMITED (ACN 007 871 128)
Second Respondent

NEWS INTERACTIVE PTY LIMITED (ACN 000 529 457)
Third Respondent

CAREERONE PTY LIMITED (ACN 090 615 722)
Fourth Respondent

JUDGE:

HEEREY J

DATE OF ORDER:

16 DECEMBER 1999

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1. The application for an interlocutory injunction is dismissed.
2. An amended statement of claim is to be filed and served by 23 December 1999.
3. The defence is to be filed and served by 28 January 2000.
4. The directions hearing is adjourned to 14 February 2000.
5. The applicant pay the respondents’ costs of the application for an interlocutory injunction.

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V708 OF 1999

BETWEEN:

THE G-A-M-E NETWORK PTY LIMITED (ACN 088 403 918)
Applicant

AND:

THE HERALD & WEEKLY TIMES LIMITED (ACN 004 113 937)
First Respondent

NEWS LIMITED (ACN 007 871 128)
Second Respondent

NEWS INTERACTIVE PTY LIMITED (ACN 000 529 457)
Third Respondent

CAREERONE PTY LIMITED (ACN 090 615 722)
Fourth Respondent

JUDGE:	HEEREY J
DATE:	16 DECEMBER 1999
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. I am satisfied this is not an appropriate case for an interlocutory injunction. Without going into the merits of the claim, I think the balance of convenience clearly is against an injunction. I am not satisfied that damages or an account of profits would not be available should the applicant succeed at trial. If an injunction were granted now, there would be a serious disadvantage to innocent third parties, that is, the 65 companies that have signed contracts to the value of $250,000, and a waste of the respondents’ advertising campaign. These factors weigh against the grant of an injunction.

2. Also there is the public interest element in competition. The applicant’s and respondents’ products are similar. Whether their similarity is due to any wrongful conduct on the part of the respondents remains to be seen, but nevertheless they are competing in the marketplace and the court ought not lightly to intervene with that.

3. Further, there is an element of significant delay on the part of the applicant. It knew of the respondents’ proposed website on 25 November and that it would be launched on 1 December. It made a claim through its patent attorneys on 6 December, confined to an allegation of patent infringement which is not at the moment pressed, but it only brought on this application yesterday. So for these reasons I would decline to grant an injunction.

I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey.

Associate:

Dated:             24 December 1999

Counsel for the Applicant:	Mr A Graham QC with Mr R C Webster
Solicitor for the Applicant:	Arnold Thomas & Becker
Counsel for the Respondent:	Mr A C Archibald QC with Ms G L Schoff
Solicitor for the Respondent:	Arthur Robinson & Hedderwicks
Date of Hearing:	16 December 1999
Date of Judgment:	16 December 1999