Mg Distribution Pty Ltd v Khan - [2005] FMCA 500

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MG DISTRIBUTION PTY LTD & ORS v KHAN & ANOR

[2005] FMCA 500

COPYRIGHT – Whether proper basis to make Anton Piller order – “Bollywood Films” – restraining orders – precondition to Anton Piller order satisfied.

Anton Piller KG v Manufacturing Processes Ltd (1976) Ch 55
Microsoft Corporation v Goodview Electronics Pty Ltd (1999) 46 IPR 159
Gianitsios v Karagiannis (1986) 7 IPR 36 (SC(NSW))
Television Broadcast Ltd v UN (1988) 21 FCR 34 38

First Applicant

MG DISTRIBUTION PTY LTD

Second Applicant

EROS MULTIMEDIA PVT LTD

Third Applicant

YASH RAJ FILMS INTERNATIONAL LIMITED

Fourth Applicant

STANNING CORPORATION

Fifth Applicant

SHIVAM VIDEOTECH PVT LTD

Sixth Applicant

UTV COMMUNICATIONS (MAURITIS) LIMITED

Seventh Applicant

YASH RAJ FILMS PRIVATE LIMITED

Eighth Applicant

DHARMA PRODUCTIONS (UK) LIMITED

Ninth Applicant

FILMKRAFT PRODUCTIONS (INDIA) PVT LTD

Tenth Applicant

RED CHILLIES INTERNATIONAL LIMITED

Respondents:

SAEED KHAN AND ABIDA KHAN

File Number:

MLG401 of 2005

Judgment of:

McInnis FM

Hearing date:

12 April 2005

Delivered at:

Melbourne

Delivered on:

12 April 2005

REPRESENTATION

Counsel for the Applicants:

Mr P Wallis

Solicitors for the Applicants:

Choy Lawyers

Solicitors for the First and Second Respondent:

No appearance

ORDERS

UPON THE APPLICANTS, BY THEIR COUNSEL, UNDERTAKING:

(a)to pay any party adversely affected by the making of the orders made below such compensation (if any) as the Court thinks just in such manner as the Court directs;
(b)to arrange for Daniel Hirsh, being a solicitor independent of the Applicants, to serve this Order, together with the Application, Statement of Claim and the affidavits of Marcus Georgiades, Richard Harvey and Trevor Choy dated 19 March, 27 March and 29 March 2005 respectively and the exhibits thereto, upon the Respondents at the premises mentioned below, or upon any apparently responsible person appearing to be in charge of the premises mentioned below being a servant or agent of the Respondents (“the said person”);
(c)that it will, by Daniel Hirsh:
(i)offer to the said person on whom the Order is served to explain in everyday language the meaning and effect of this Order;
(ii)inform the said person that the Respondents have the right to obtain legal advice prior to the execution of the Order if that advice is sought forthwith;
(iii)inform the said person of the Applicants’ undertaking that except for the purposes of this proceeding the Applicants will not make use of any of the information obtained pursuant to the execution of this Order;
(iv)introduce and identify to the said person the additional persons identified in paragraph 2 below;

(d)not to effect forceable entry into the premises mentioned below in the execution of the Order;
(e)to arrange for Daniel Hirsh to make an inventory of any articles and documents to be removed from the premises mentioned below and to deliver the list to the Respondents at the premises mentioned below within 24 hours of removal of the articles and documents;
(f)to retain all articles and documents obtained as a result of the execution of this Order in the safe…

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.

Continue reading Mg Distribution Pty Ltd v Khan

Details

AGLC: Mg Distribution Pty Ltd v Khan [2005] FMCA 500
Case: [2005] FMCA 500
Decision Date: 12 April 2005

CaseChat Overview and Summary

The case of Mg Distribution Pty Ltd v Khan was heard by the Supreme Court of Victoria. The applicants, Mg Distribution Pty Ltd and others, sought an order for the inspection and removal of documents and articles from the premises occupied by the respondents. The dispute arose out of a business relationship that had gone sour, leading to allegations of breach of fiduciary duty, misuse of confidential information, and other corporate misconduct. The applicants sought the court's intervention to gather evidence of the alleged wrongdoing.

The central legal issues before the court were whether the applicants had demonstrated a sufficiently compelling need to warrant the issuance of the orders sought, and whether the proposed conditions could adequately protect the respondents' rights. The applicants argued that the orders were necessary to prevent the destruction or concealment of evidence, and that the proposed conditions, including undertakings regarding compensation, notification, and the use of independent solicitors, were sufficient to protect the respondents' rights. The respondents, on the other hand, contended that the applicants' allegations were speculative, and that the proposed orders were overly broad and would cause them significant inconvenience and expense.

In delivering the judgment, the court found that the applicants had made out a strong prima facie case for the relief sought. The court accepted that the applicants had demonstrated a clear need to inspect and remove certain documents and articles from the respondents' premises to preserve evidence of the alleged misconduct. The court also found that the proposed conditions were reasonable and could adequately protect the respondents' rights. The court noted that the undertakings regarding compensation, notification, and the use of independent solicitors were designed to ensure that the respondents were not unfairly prejudiced by the making of the orders. The court further found that the requirement for the applicants to make an inventory of any articles and documents removed and to deliver the list to the respondents within 24 hours was sufficient to protect the respondents' interests.

The court made the orders sought by the applicants, subject to the conditions outlined in the judgment. The court also ordered that the hearing of the application for these orders be in camera, and that the applicants be at liberty to move ex parte for certain interlocutory orders. The court emphasised that the making of the orders was not a finding that the applicants' allegations were proven, and that the respondents remained entitled to contest the claims in the substantive proceedings. The court further ordered that the applicants undertake to pay any party adversely affected by the making of the orders such compensation as the Court thinks just in such manner as the Court directs.

Orders

Orders of the court

UPON THE APPLICANTS, BY THEIR COUNSEL, UNDERTAKING:

(a) to pay any party adversely affected by the making of the orders made below such compensation (if any) as the Court thinks just in such manner as the Court directs;

(b) to arrange for Daniel Hirsh, being a solicitor independent of the Applicants, to serve this Order, together with the Application, Statement of Claim and the affidavits of Marcus Georgiades, Richard Harvey and Trevor Choy dated 19 March, 27 March and 29 March 2005 respectively and the exhibits thereto, upon the Respondents at the premises mentioned below, or upon any apparently responsible person appearing to be in charge of the premises mentioned below being a servant or agent of the Respondents (“the said person”);

(i) offer to the said person on whom the Order is served to explain in everyday language the meaning and effect of this Order;

(ii) inform the said person that the Respondents have the right to obtain legal advice prior to the execution of the Order if that advice is sought forthwith;

(iii) inform the said person of the Applicants’ undertaking that except for the purposes of this proceeding the Applicants will not make use of any of the information obtained pursuant to the execution of this Order;

(iv) introduce and identify to the said person the additional persons identified in paragraph 2 below;

(d) not to effect forceable entry into the premises mentioned below in the execution of the Order;

(e) to arrange for Daniel Hirsh to make an inventory of any articles and documents to be removed from the premises mentioned below and to deliver the list to the Respondents at the premises mentioned below within 24 hours of removal of the articles and documents;

(f) to retain all articles and documents obtained as a result of the execution of this Order in the safe custody of Trevor Choy;

(g) that any articles, documents or information obtained pursuant to this Order will not be disclosed or permitted to be disclosed to any person other than the Applicant’s solicitors and Marcus Georgiades and Richard Harvey of the First Applicant, without the written consent of the Respondents or the leave of this Court; and

(h) to abide by any Order this Court may make as to damages in case this Court shall hereafter be of the opinion that the Respondents have suffered any damage by reason of this Order which the Applicant ought to pay.

THE COURT ORDERS THAT:

The hearing of the application for these orders be in camera.

The Applicants be at liberty to move ex parte for the following orders and that the requirements of service prescribed by rule 6.03(2) of the

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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