McCallum v Projector Films Pty Ltd

Case [2025] FCA 903

FEDERAL COURT OF AUSTRALIA

McCallum v Projector Films Pty Ltd [2025] FCA 903

File number(s): NSD 1832 of 2024
Judgment of: SHARIFF J
Date of judgment: 6 August 2025
Date of publication: 7 August 2025
Catchwords: COPYRIGHT – interlocutory application – dispute over which of two persons is to be attributed and credited as the “principal director” of a documentary to be premiered this week at the Melbourne International Film Festival – moral rights – right of attribution of authorship – false attribution – misleading and deceptive conduct – interlocutory injunctive relief – serious question to be tried – balance of convenience – relief granted
Legislation:

Competition and Consumer Act 2010 (Cth), Sch 2, Australian Consumer Law s 18

Copyright Act 1968 (Cth) ss 189, 191, 195AW(1), 195AW(2), 195AWA

Cases cited:

Australian Broadcasting Corp v O’Neill [2006] HCA 46; 227 CLR 57

Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63; 208 CLR 199

Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1; 118 CLR 618

Castlemaine Tooheys Ltd v South Australia [1986] HCA 58; 161 CLR 148

Samsung Electronics Co Limited v Apple Inc [2011] FCAFC 156; 217 FCR 238
Division: General Division
Registry: New South Wales
National Practice Area: Intellectual Property
Sub-area: Copyright and Industrial Designs
Number of paragraphs: 86
Date of hearing: 4 August 2025
Counsel for the applicant Mr A R Lang SC with Mr R Clark
Solicitor for the applicant Frankel Lawyers
Counsel for the respondents Ms F St John with Ms A O Brodie
Solicitor for the respondents Banki Haddock Fiora

ORDERS

NSD 1832 of 2024
BETWEEN:

STEPHEN MCCALLUM

Applicant
AND:

PROJECTOR FILMS PTY LTD

First Respondent

DAVID ANTHONY NGO

Second Respondent

ORDER MADE BY:

SHARIFF J

DATE OF ORDER:

6 AUGUST 2025

THE COURT ORDERS THAT:

1.Upon the Applicant providing through his counsel the usual undertaking as to damages, until final determination of these proceedings or further order, the Respondents be enjoined from, in Australia:

(a)causing or authorising the film entitled “Never Get Busted!” which is presently proposed to be screened at the Melbourne International Film Festival 2025 (the Documentary) to be seen and heard in public or communicated to the public, unless the Documentary both contains the credit “Directed by Stephen McCallum” and does not contain the credit “Directed by” for the Second Respondent; and

(b)promoting the Documentary, or causing the Documentary to be promoted, unless (where the promotion contains credits for the Documentary) the promotion both contains the credit “Directed by Stephen McCallum” and does not contain the credit “Directed by” for the Second Respondent.

2.Costs be reserved.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

SHARIFF J:

1.                 INTRODUCTION

  1. A documentary film entitled “Never Get Busted!” (the Documentary) is due to have its Australian premiere this week at the Melbourne International Film Festival (MIFF).  It is scheduled to be screened on Friday, 8 August…

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Details
AGLC
McCallum v Projector Films Pty Ltd [2025] FCA 903
Case
[2025] FCA 903
Decision Date

CaseChat Overview and Summary

In the case of McCallum v Projector Films Pty Ltd, Stephen McCallum sought an injunction to prevent the respondents from screening or promoting a documentary titled "Never Get Busted!" at the Melbourne International Film Festival without crediting him as the principal director. The respondents, Projector Films and David Ngo, claimed that Ngo was the principal director and argued against the granting of the injunction. The legal issues before the court were whether McCallum had established a serious question to be tried regarding his entitlement to be credited as the principal director, and whether the balance of convenience favoured granting the injunction. The court held that McCallum had established a serious question to be tried regarding his entitlement to be credited as the principal director, and that the balance of convenience favoured granting the injunction. The court ordered that the respondents were enjoined from screening or promoting the documentary without crediting McCallum as the principal director until the final determination of the proceedings. The court reserved costs pending the outcome of the substantive proceedings.

Orders

Orders of the court

1. Upon the Applicant providing through his counsel the usual undertaking as to damages, until final determination of these proceedings or further order, the Respondents be enjoined from, in Australia:

(a) causing or authorising the film entitled “Never Get Busted!” which is presently proposed to be screened at the Melbourne International Film Festival 2025 (the Documentary) to be seen and heard in public or communicated to the public, unless the Documentary both contains the credit “Directed by Stephen McCallum” and does not contain the credit “Directed by” for the Second Respondent; and

(b) promoting the Documentary, or causing the Documentary to be promoted, unless (where the promotion contains credits for the Documentary) the promotion both contains the credit “Directed by Stephen McCallum” and does not contain the credit “Directed by” for the Second Respondent.

2. Costs be reserved.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

For the reasons that follow, I am satisfied that interlocutory relief should be granted. As I will explain, I was initially inclined to grant the alternative relief sought by Mr McCallum as, in my view, this would have more adequately addressed the justice of the case in that it would have recognised that both men laid claim to being the Principal Director of the Documentary and that this matter was the subject of legal proceedings. This would have been an accurate statement as to the true state of affairs and one which genuinely preserved the status quo. However, the respondents did not wish this true position to be conveyed as they considered it to be detrimental to their prospects of selling rights to the Documentary to third parties which, in the present age of streaming and digital platforms, is where the real money is likely to lie rather than at the box office. The respondents urged that, if Mr McCallum established a case for relief (which they stridently opposed), the Court should grant the primary relief sought by Mr McCallum which was said to be preferable to being subjected to the alternative relief. As I will explain, in light of this position, I am satisfied that the primary relief sought by Mr McCallum should be granted even though it will be obvious from this judgment that the question of who is the Principal Director of the Documentary is the subject of legal proceedings and one might expect that the respondents will disclose this fact to third parties (if they did not already know). 2. THE RELEVANT EVIDENCE As mentioned above, the proceedings have been listed for final hearing. By reason of case management orders made by me, the parties have respectively filed and served the evidence upon which they intend to rely in the substantive proceedings. The evidence that the parties have filed is as extensive as it is voluminous, and includes expert evidence. The parties relied upon all of that evidence for the purpose of the interlocutory relief, together with some additional evidentiary materials. Mr McCallum relied on:(a)three affidavits he affirmed in these proceedings: (i)the first of which was dated 22 July 2025 and is 100-pages in length (First McCallum Affidavit);(ii)the second of which was also dated 22 July 2025 and is 11-pages in length; and (iii)the third of which was dated 27 July 2025;(b)the affidavit of Ms Needeya Islam dated 21 July 2025 (Islam Affidavit), who is Mr McCallum’s agent; (c)the affidavit of Mr Greg Duffy dated 22 July 2025, who is Mr McCallum’s solicitor; and (d)the affidavits of Mr Rolf de Heer dated 23 July 2025 (de Heer Affidavit) and 27 July 2025, who is an accomplished, award-winning Australian film director and producer and whose evidence is in the nature of expert evidence. In turn, the respondents relied on:(a)the affidavit of Mr Ngo dated 24 July 2025; (b)the affidavit of Ms Erin Williams-Weir dated 23 July 2025, who is a producer of the Documentary and the wife of Mr Ngo; (c)the affidavit of Mr Daniel Joyce dated 25 July 2025, who is a producer of the Documentary and is a corporate director of Projector Films; (d)the affidavit of Mr John Battsek dated 23 July 2025, who is an executive producer of the Documentary;(e)the affidavit of Mr Julian Hart dated 24 July 2025, who is an editor of the Documentary;(f)the affidavit of Mr James Cude dated 24 July 2025, who is a story consultant and editor of the Documentary;(g)the affidavit of Ms Sharyn Grace Eyre dated 22 July 2025, who is an editor of the Documentary;(h)the affidavit of Mr Simon Walbrook dated 23 July 2025, who is the composer of the Documentary; and(i)the affidavit of Ms Lucy Maclaren dated 25 July 2025, who is an expert witness with over 40 years’ experience in various roles in the Australian film industry with a particular focus on documentary films (Maclaren Affidavit).

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The respondents submit that Mr McCallum has not established a prima facie case in circumstances where, by implementing the 16 July Proposal, Mr McCallum will receive attribution as a Principal Director of the Documentary. 3.2 Consideration In respect of both of Mr McCallum’s relevant claims – under the Copyright Act and the ACL – one of the core issues is whether in fact Mr McCallum was, or is, the Principal Director. There is a considerable factual dispute about who performed the work as the Principal Director. For the reasons I explain below, despite the considerable contest in the evidence I am satisfied that Mr McCallum has established that there is a serious question to be tried as to whether he has an entitlement to relief which I do not regard as weak but equally I cannot presently assess it to be strong. In coming to the conclusion that Mr McCallum has established a serious question to be tried, I have had regard to the nature and quality of the rights in issue in respect of which there is a threatened infringement: O’Neill at [19] (Gleeson CJ and Crennan J). I accept the respondents’ contention that the case as to the existence and infringement of moral rights has complexity in light of the core factual issue between the parties and by reason of cl 6.2 of the Director’s Agreement relating to the waiver of moral rights. However, in my view those issues need to be weighed against the fact that the terms of the Director’s Agreement record the parties’ intention that Mr McCallum was to be the Principal Director of the Documentary and was to perform work in that capacity as required by Projector Films. The Director’s Agreement has not been terminated. Nor has there been any allegation that it was breached or repudiated. Further, even if cl 6.1 is to be read as giving rise to a “written consent” within the meaning of s 195AW(1) and (2) of the Copyright Act, there is a serious question to be tried as to whether the breadth of that clause is to be read subject to cl 9 which provides that Mr McCallum will, subject to fulfilling his duties as required by Projector Films, receive credit as the Principal Director of the Documentary. Thus, subject to the resolution of the central factual controversy between the parties, I am satisfied that Mr McCallum has established that there is a serious question to be tried as to the existence and infringement of his alleged moral rights. Putting to one side Mr McCallum’s claims under the Copyright Act, I am also satisfied he has established a prima facie case or that there is a serious question to be tried that the respondents have engaged in or are engaging in misleading and deceptive conduct such that there is a threat that this will occur upon the Australian premiere of the Documentary at the MIFF. To explain why this is so, it is necessary to point out the steps the respondents have taken since the 16 July Proposal in a purported attempt to convey that Mr McCallum and Mr Ngo are co-Principal Directors which do not, in fact, have that effect for the following reasons: (a)first, the present iteration of the MIFF webpage (which is the second iteration overall as referred to above at [36]), merely refers to “Director” and not “Principal Director” or “co-Principal Director”, it places Mr McCallum’s name second in order to Mr Ngo, and continues to state that Mr Ngo helms the documentary – thus, irrespective of whether the webpage and its contents are under the control of the respondents, a central aspect of the promotion of the Documentary is, at best, entirely ambiguous as to who is the Principal Director and, at worst, conveys that it is Mr Ngo and, accordingly, does not achieve the effect of conveying that Mr McCallum was, or is, at least a co-Principal Director; (b)second, the present program for the MIFF contains a short synopsis for the Documentary which simply reads “Dir. David Anthony Ngo, Stephen McCallum” – this too conveys a similar impression as described in (a) and also does not achieve the effect of conveying that Mr McCallum was, or is, at least a co-Principal Director; (c)third, material has been disseminated by the organisers of the MIFF in relation to a “Q&A” to be held following each screening of the Documentary and identifies Mr Ngo as the director – this too, by omission, does not achieve the effect of conveying that Mr McCallum was, or is, at least a co-Principal Director; and(d)fourth, the opening and end credits have been ordered in a sequence in which there is a concurrence between the experts that they will convey that Mr Ngo is the Principal Director and, accordingly, does not achieve the effect of conveying that Mr McCallum was, or is, at least a co-Principal Director.