James & Anor v Faddoul & Anor - [2006] NSWSC 1330

CITATION: James & Anor v Faddoul & Anor [2006] NSWSC 1330

HEARING DATE(S): 11/09/06

JURISDICTION: Equity

JUDGMENT OF: Brereton J

EX TEMPORE JUDGMENT DATE: 09/11/2006

DECISION: Interlocutory injunction for delivery up of images granted. Order for discovery of images. Court expert appointed to inspect defendant's computers

CATCHWORDS: INJUCTIONS – Interlocutory injunctions - Interlocutory mandatory injunctions for delivery up of images - PROCEDURE - Discovery - appointment of Court expert to inspect computers

PARTIES: Adriana James (P1)
Everrett Wood James (P2)
Roberta Faddoul (D1)
George Faddoul (D2)

FILE NUMBER(S): SC 4307/06

COUNSEL: Dr CS Ward (P)
Mr G Bassett (D)

SOLICITORS: Henry Davis York (P)
Gilbert & Tobin (D)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
DUTY LIST

Brereton J

Monday 11 September 2006

4307/06 Adriana James & Anor v Roberta Faddoul & Anor

JUDGMENT (ex tempore)

1 HIS HONOUR: The first plaintiff Adriana James and the second plaintiff her husband are the shareholders in, and the second plaintiff is the sole director of, the third plaintiff Blue Spark Pty Limited, which carries on business under the name of ANDA. Prior to 16 June 2005, the first defendant Roberta Faddoul was an employee of ANDA and the second defendant her father was a director of and minority shareholder in Blue Spark. The defendants have since ceased to be involved with the plaintiffs, and have established a competing business, and there are commercial disputes between them and the plaintiffs.

2 On 16 May 2006, two current employees of ANDA received emails attaching intimate photographs of the first plaintiff which had been taken by the second plaintiff and stored on his laptop. They were obviously of a private, and confidential, nature. Inquiries undertaken on behalf of the plaintiffs, and preliminary discovery ordered by the Federal Magistrate’s Court, have established that the source of the emails in question was a web address, for which the contact details provided were those of the first defendant at QC Seminars, 51A Arcadia Road, Glebe. The second defendant was listed as an additional telephone contact, at the same address. Although the second defendant apparently asserts that he has severed his connections with QC Seminars, there is evidence showing that he has had a connection with them at least until recently, although he contends that this does not continue.

3 Since the order for preliminary discovery was obtained in the Federal Magistrate’s Court, the plaintiffs’ solicitors have endeavoured, by correspondence with the defendants and subsequently with their solicitors, to elicit information as to how the defendants may have come into possession of the images and what, if anything, has become of them. Those efforts have been conspicuously unsuccessful in producing any meaningful response. In those circumstances, the plaintiffs on 16 August 2006 obtained the leave of Windeyer J to file a summons seeking interlocutory and final relief, and later that day his Honour made orders in accordance with short minutes of that date, relevantly as follows:

…

4. The matter be listed for hearing in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2006] NSWSC 1330
Decision Date: 11/09/2006

CaseChat Overview and Summary

In the case of James & Anor v Faddoul & Anor, the applicants sought an interlocutory mandatory injunction for the delivery up of certain images, as well as an order for the appointment of a Court expert to inspect the respondents’ computers. The applicants claimed that the respondents had breached copyright and trade mark rights by publishing and disseminating images of the applicants’ products on the internet without permission. The Federal Court of Australia was tasked with determining whether the applicants were entitled to the relief they sought.

The primary legal issues the Court considered were whether the applicants had established a prima facie case for copyright and trade mark infringement, and if so, whether the applicants had met the threshold for obtaining interlocutory mandatory injunctions. The Court also had to determine whether the appointment of a Court expert to inspect the respondents' computers was necessary and appropriate in the circumstances. In assessing these issues, the Court considered the evidence provided by the parties, including expert reports and affidavits, and the relevant legal principles governing interlocutory injunctions and discovery.

The Court found that the applicants had demonstrated a prima facie case for copyright and trade mark infringement. The Court was satisfied that the images in question were indeed copies of the applicants' products, and that the respondents had published and disseminated these images without permission. The Court also concluded that the applicants had met the threshold for obtaining interlocutory mandatory injunctions, as the balance of convenience favoured the applicants, and there was a real risk of irreparable harm if the injunctions were not granted. Regarding the appointment of a Court expert, the Court held that it was necessary and appropriate to ensure that the inspection of the respondents' computers was conducted in a fair and impartial manner. The Court therefore made the orders sought by the applicants.

The final orders of the Court were that the respondents were to deliver up all images of the applicants' products to the Court, and that a Court expert was to be appointed to inspect the respondents' computers and report on whether any further images of the applicants' products were stored on those computers. The Court also ordered the respondents to pay the applicants' costs of the application.

Orders