Kailash Center for Personal Development Inc v Yoga Magik Pty Limited

[2003] FCA 623

FEDERAL COURT OF AUSTRALIA

Kailash Center for Personal Development Inc v Yoga Magik Pty Limited [2003] FCA 623

KAILASH CENTRE FOR PERSONAL DEVELOPMENT INC & ANOR V YOGA MAGIK PTY LIMITED & ORS
N 20 OF 2002

ALLSOP J
20 JUNE 2003
SYDNEY  

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 20 of 2002

BETWEEN:

KAILASH CENTER FOR PERSONAL DEVELOPMENT INC
FIRST APPLICANT

JONN MUMFORD
SECOND APPLICANT

AND:

YOGA MAGIK PTY LIMITED
FIRST RESPONDENT

MEGHAN STEVENS
SECOND RESPONDENT

QUALITY TECH PTY LTD (ACN 002 700 521)
THIRD RESPONDENT

JUDGE:

ALLSOP J

DATE OF ORDER:

20 JUNE 2003

WHERE MADE:

SYDNEY

THE COURT ORDERS:

1.That, subject to orders 2 and 3 below, the respondents include a notice in the form set out in the schedule to these orders:

(a)on each page of the website at (the Yoga Magik website); and

(b)on each page of any website they or any of them control or controls now or in the future which deals with yoga or eastern spirituality in which any reference is made to Jonn Mumford, by that name or by any other name, including but not limited to “Dr Jonn Mumford ” , “Jonn Mumford” , “Mumford” , “Swami Anandakapila Saraswati”, “Anandakapila” or “Swamijii”.

2.That the notice referred to in 1 above is to be readily accessible on each page, clearly legible and in a typeface the size of which is the same as the other standard text on the page.

3.That the notice referred to in 1 above is to be so placed on the pages of such website or websites for a period being the later to expire of two years from the date of these orders (20 June 2003) or the cessation by the respondents of the sale or dissemination of any courses which, to any substantial degree, were written by the said Mumford.

4.That the respondents be restrained by themselves, their servants or agents or otherwise from representing in trade or commerce that the second respondent (by any appellation) has been given authority or permission or has been empowered by the second applicant to teach any course of yoga or eastern spirituality of the nature referred to on the Yoga Magik website in 2002.

5.That the respondents take all necessary steps to deregister or cancel the domain name and the sub-domain name ~mumford 8.

6.That the respondents be restrained by themselves, their servants or agents or otherwise from re-registering without the prior consent of the second applicant either of the domain names and the sub-domain name referred to in order 5 or registering any other domain name which includes any of the names Jonn Mumford, Dr Jonn Mumford, Swami Anandakapila Saraswati, Swami Anandakapila, Anandakapila or Swamijii.

7.That judgment be entered in favour of the first applicant against the first respondent in the sum of $4,0000.00 together with interest thereon pursuant to s.51A of the Federal Court of Australia Act 1976 in the sum of $526.36.

8.That the first and second respondents pay the applicants’ costs of the proceedings.

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

SCHEDULE TO ORDERS MADE 20 JUNE 2003

NOTICE

(a)Jonn Mumford (Swami Anandakapila Saraswati) is no longer associated in any way whatsoever with the business Yoga Magik or this website.

(b)Jonn Mumford has no control over the content of this website or the information contained in it.

(c)Meghan Stevens (Gayenand) though initiated as a disciple by Jonn Mumford (Swami Anandakapila Saraswati) is not authorised or empowered by him to teach any courses.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 20 of 2002

BETWEEN:

KAILASH CENTER FOR PERSONAL DEVELOPMENT INC
FIRST APPLICANT

JONN MUMFORD
SECOND APPLICANT

AND:

YOGA MAGIK PTY LIMITED
FIRST RESPONDENT

MEGHAN STEVENS
SECOND RESPONDENT

QUALITY TECH PTY LTD (ACN 002 700 521)
THIRD RESPONDENT

JUDGE:	ALLSOP J
DATE:	20 JUNE 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. I delivered reasons in this matter on 30 May 2003 and stood the matter over to a date to be fixed for the making of orders and any argument in relation to the form thereof, including as to costs.  I heard the parties on 12 June 2003.  Prior to that date the applicants’ solicitors filed and served draft proposed orders.

2. Two matters were raised on that day.  First, I raised with Mr Webb whether I should revisit my conclusion to award $4,000 in damages in the light of the absence of evidence led by the applicants of the fees charged by them for their offered services.  My reasons at [113] to [117] sought to express what the applicants had lost, not what the respondents had gained.  One of the integers, however, in that assessment was $500 which was the price charged by the first respondent for courses offered by it.  That sum was intended as a surrogate for the value lost to the applicants.

3. The approach that I employed was very broad.  I think that it is correct to conclude, as I did, that in all likelihood the first applicant lost business.  The method that I employed gives a modest, almost nominal amount by way of damages.  Whilst there is, if I may respectfully put it this way, great force in what Handley JA said in Commercial Union Assurance Co of Australia v Ferrcom Pty Limited (1991) 22 NSWLR 389 at 418-9 that inferences should not be drawn or, at least, readily drawn in favour of a party who could, but does not, call evidence on a topic, that should not be seen as detracting from an overall obligation on me, if I think (as I do) that some damage has been caused, to do the best I can with the material at hand.

4. In all the circumstances, I do not propose to vary my conclusion about damages, save that [113] to [117] should be read with [2] and [3] above.

5. The second issue raised was costs.  The applicants sought their costs.  Ms Stevens said that each party should pay her, his and its own costs.  She said that she acted reasonably at all times, attempted to accommodate the applicants and, at least until early June 2002 (when the amended application and amended statement of claim were filed) she was burdened with claims that ranged too widely.

6. As I said in my reasons, the claims of the applicants’ solicitors before hearing were broad.  They included, for instance, claims for breach of copyright.  Certainly by early June 2002 Ms Stevens and the other respondents could have been under no illusion as to the thrust of the applicants’ claims.  Some steps were taken to ameliorate the position, but well short of that which would have remedied the position.

7. On balance, I do not think that the applicants have so conducted themselves in the litigation as to deprive themselves of an entitlement to the usual order for costs.  However, I do not think that I should award any costs against the third respondent.  The responsibility for the contraventions that have occurred is principally with Ms Stevens and the first respondent.

8. In these circumstances I will make orders substantially in the terms foreshadowed in [110] and [117] of my reasons and I will order that the first and second respondents pay the applicants’ costs.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop .

Associate:

Dated:             20 June 2003

Counsel for the Applicant:	R J Webb SC
Solicitor for the Applicant:	Webster O'Halloran
The second respondent appeared in person and, with leave, on behalf of the first and third respondents.
Date of Hearing:	21-24 October 2003, 28 November 2002, 12 June 2003
Date of Judgment:	20 June 2003