Mg Distribution Pty Ltd v Luthra - [2004] FMCA 1027

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MG DISTRIBUTION PTY LTD & ORS v LUTHRA & ANOR

[2004] FMCA 1027

Copyright Act 1968 (Cth), Part V, ss.86, 102, 103, 131D
Federal Magistrates Court Act 1999 (Cth), s.14
Federal Magistrates Court Rules 2001 (Cth), rr. 5.01, 5.03

Anton Piller KG v Manufacturing Processes Ltd [1976] Ch 55
Microsoft Corporation v Goodview Electronics Pty Ltd (1999) 46 IPR 159
Rank Film Distributors Ltd v Video Information Centre [1982] AC 380
Television Broadcasts Ltd v Nguyen (1988) 21 FCR 34

Universal Music Australia Pty Ltd v N and J Nominees Pty Ltd [2003] FMCA 575

Applicants:

MG DISTRIBUTION PTY LTD and OTHERS

Respondents:

NALISHA LUTHRA and ANOTHER

File No:

MLG 1704 of 2004

Delivered on:

24 December 2004

Delivered at:

Melbourne

Hearing Date:

23 December 2004

Judgment of:

Connolly FM

REPRESENTATION

Counsel for the Applicant:

Mr P. Wallis

Solicitors for the Applicant:

Choy Lawyers

Counsel for the Respondent:

Solicitors for the Respondent:

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 1704 of 2004

MG DISTRIBUTION PTY LTD and OTHERS

Applicants

and

NALISHA LUTHRA and ANOTHER

Respondents

REASONS FOR JUDGMENT

This is an ex tempore judgment with respect to orders made late yesterday. The Applicants sought ex parte interlocutory orders in the form set out in the draft order filed with the application and statement of claim in this proceeding on 23 December 2004. The Applicants allege in the statement of claim that the Respondents have infringed and continued to infringe the Applicants’ copyright in cinematograph films owned by the Applicants and set out in schedule 2 of the statement of claim (“The Applicants’ Films”) by reproducing, importing and/or selling copies of the Applicants’ Films in digital video compact disc (DVD), video compact disc (VCD) or video cassette tape format.
There are three supporting affidavits relied upon, that of Marcus Georgiades (sworn 22 December 2004), Mitu Lange (sworn 22 December 2004) and Trevor Choy (sworn 22 December 2004).
By paragraphs 2 and 3 of the draft order the Applicants seek orders that the Representatives of the Applicants be permitted to enter the premises of the Respondents, located at shop number 2, 96-98 Wigram Street, Harris Park, New South Wales, without prior notice to the Respondents for the purpose of searching for and removing into custody of the Applicants’ solicitor unauthorised copies of the Applicants’ Films, together with promotional material and business records relating to the Applicants’ Films. The above aspect of the order is a form of Anton Piller order, so called after the case of Anton Piller KG v Manufacturing Processes Ltd [1976] Ch 55 (“Anton Piller”).
By paragraph 4 of the order the Applicants seek an interlocutory injunction restraining the Respondents from reproducing, importing or selling the Applicants’ Films until further order. In support of their application the Applicants relied on the three affidavits that I have already referred to.
The Federal Magistrates Court of Australia has jurisdiction…

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 Luthra

Details

AGLC: Mg Distribution Pty Ltd v Luthra [2004] FMCA 1027
Case: [2004] FMCA 1027
Decision Date: 24 December 2004

CaseChat Overview and Summary

The case of Mg Distribution Pty Ltd v Luthra involves a dispute over copyright infringement of cinematograph films, specifically Bollywood films, which were allegedly pirated and distributed by the respondents. The applicants, owners or exclusive licensees of the copyright in the films, sought an Anton Piller order to search the respondents' premises for infringing copies and materials, and an interlocutory injunction to restrain the respondents from further infringing activities. The Federal Magistrates Court of Australia, having jurisdiction under the Copyright Act 1968, considered the application on an urgent basis without notice.

The legal issues before the court were whether the applicants had established the three criteria necessary for the grant of an Anton Piller order: a strong prima facie case of infringement, very serious damage caused by the infringement, and clear evidence that the respondents had in their possession incriminating materials and there was a real possibility they might destroy such materials before any application inter partes could be made. Additionally, the court balanced the potential harm to the respondents against the harm to the applicants if the orders were not granted.

The court found that the applicants had established a strong prima facie case of infringement, as they were the owners or exclusive licensees of the copyright in the films, and had obtained unauthorised copies from the respondents. The court also found that the applicants had suffered and would continue to suffer substantial losses due to the respondents' activities, which met the second criterion for an Anton Piller order. Finally, the court found that there was clear evidence that the respondents had in their possession infringing copies of the applicants' films and promotional materials, and that there was a real possibility the respondents might destroy such materials before any application inter partes could be made. The court considered the discretionary factors and determined that the potential harm to the applicants if the orders were not granted outweighed the potential harm to the respondents.

The court granted the orders in the form sought by the applicants, allowing the applicants' representatives to enter the respondents' premises to search for and remove unauthorised copies of the films and related materials. The court also granted an interlocutory injunction to restrain the respondents from further infringing activities. The court adjourned all extant applications to a later date and reserved liberty to expand upon these reasons.

Orders