Hinchliff, Christopher Harry v Abu-Dabat, Jehad

[1998] FCA 895

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG 76  of  1998

BETWEEN:	CHRISTOPHER HARRY HINCHLIFF APPLICANT
AND:	JEHAD ABU-DABAT RESPONDENT
JUDGE:		COOPER J
DATE OF ORDER:		24 JULY 1998
WHERE MADE:		BRISBANE

THE COURT ORDERS THAT:

1. Upon the applicant by his counsel giving an undertaking to pay to the respondent if he is adversely affected by the interlocutory injunction such compensation (if any) as the Court thinks just, in such a manner as the Court directs, the respondent (whether acting by himself, his servants or agents or any of them or otherwise howsoever) be restrained until 5.00 pm on 31 July 1998 or earlier order from making, selling or distributing brochures of the form, or which substantially reproduce the form, of Exhibit “CCH5” to the affidavit of Christopher Harry Hinchliff sworn 15 July 1998 and filed herein on 16 July 1998.

1. The respondent deliver up to the applicant’s solicitors to be held until further order of the Court all copies of the applicant’s copyright work in the possession of the respondent by 4.00 pm 30 July 1998;.

1. The respondent shall by 4.00 pm on 30 July 1998 file and serve an affidavit setting out the following information: 

(a)the number of copies, if any, of the brochure in the form of exhibit “CCH5” to the affidavit of Christopher Harry Hinchliff filed herein on 16 July 1998 in the possession, power or control of the respondent at the date of this order;

(b)the number of copies of the brochure referred to in para (a) above distributed by the respondent prior to the date of this order;

(c)the names and business addresses of those businesses, corporations or persons to whom the brochure referred to in paragraph (b) above was distributed prior to the date of this order;

(d)the location of the printing proofs and plates used to produce the brochure referred to in paragraphs (a) and (b) above.

1. The application be returnable before the Court at 3.00 pm on 31 July 1998.

1. The applicant’s costs of incidental to today’s appearance be reserved.

1. Either party be at liberty to apply.

THE COURT DIRECTS THAT :-

1. The contents of these orders be notified forthwith to Sciaccas, solicitors for the respondent, and to Paul Thomas Hayne of 501 Old Cleveland Road, Camp Hill, Brisbane.

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

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG 76 of 1998

BETWEEN:	CHRISTOPHER HARRY HINCHLIFF APPLICANT
AND:	JEHAD ABU-DABAT RESPONDENT

JUDGE(S):	COOPER J
DATE:	24 JULY 1998
PLACE:	BRISBANE

EX TEMPORE REASONS FOR JUDGMENT

This is an application by the applicant for interlocutory relief by way of injunction and delivery up of material alleged to infringe the copyright of the applicant in a brochure and map. 

The material indicates that there has been an attempt to serve the respondent who, according to the receptionist at his usual place of business, is away on holidays, and who according to his business partner is overseas.  The material indicates that the respondent has been put on notice that these proceedings would be initiated against him, and has refused to give undertakings not to infringe the copyright of the applicant in the brochure in question.

Additionally the respondent has engaged Messrs Sciaccas, solicitors, to act on his behalf, although they refused to accept service of the documentation on the basis that they had no instructions to do so from the respondent. 

The material satisfies me that there is a serious question to be tried; that, firstly, the applicant is the holder of the copyright in a brochure distributed by the applicant in the Brisbane area for some time, containing a map, information and advertising relative to the tourist market identified as “backpackers”. I am satisfied that the brochure is an artistic work and that it was created by the applicant, applying the requisite degree of skill and application.

I am also satisfied that the respondent has obtained a copy of the brochure from the applicant, and that there is a serious question to be tried that the respondent has substantially reproduced the brochure in the form in which they appear as exhibit “CHH5” to the affidavit of the applicant filed on 16 July 1998.

The brochure generates advertising income for the applicant and also generates income in respect of accommodation units operated by the applicant and referred to in the brochure.  It is clear that unless some injunctive relief is granted the respondent intends to continue to distribute material which on a comparison between it and the applicant's material shows a sufficient degree of similarity to raise a serious question that it is a substantially infringing copy. 

The applicant seeks some additional orders for delivery up of alleged infringing copies and for the provision of information as to the distribution of alleged infringing copies and the location of printing proofs and plates.

These orders are sought under order 25 of the Rules of Court.  I have been referred to a decision of Lockhart J in Authors Workshop v Bileru Pty Ltd (1989) 88 ALR 211 where similar orders were made. For the reasons expressed by his Honour I am satisfied that I have power under O25 to make the orders sought and that the facts of this case as deposed to in the material in support of the application, justify the making of such an order. The applicant sought some wider relief which I need not detail but I am not prepared to grant that relief on an interim basis.

I propose to grant interim relief until Friday 31 July 1998 and require that notice of the contents of the orders I am about to make be given forthwith to Messrs Sciaccas, the solicitors for the respondent, and to a Mr Paul Thomas Hayne who, on the material, is a business partner of the respondent and apparently in contact with him or able to contact him.  In doing that I do not intend that such service will be substituted service or service in lieu on the respondent.  In my view the respondent should be served with the application, the affidavit material in support and a copy of this order at the first reasonable opportunity to effect service on him. 

It may well be that upon receiving the material he will direct that service be accepted on his behalf if, in fact, he is out of the country.  The applicant has given the usual undertaking to pay damages if required.

The draft of these orders, in the form which I have just read into the record, will be initialled by me and placed with the papers. 

In making these orders, I am satisfied that the balance of convenience lies in the grant of interim relief today and that damages ultimately will not prove to be or may not prove to be, on the material now before me, an adequate remedy.

I certify that this and the preceding three (3) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Cooper

Associate:

Dated:            24 July 1998

Counsel for the Applicant:	A F Maher
Solicitor for the Applicant:	Blake Topping
No appearance for the Respondent
Date of Hearing:	24 July 1998
Date f Judgment:	24 July 1998