Mg Distribution Pty Ltd v Luthra
[2004] FMCA 1027
•24 December 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MG DISTRIBUTION PTY LTD & ORS v LUTHRA & ANOR | [2004] FMCA 1027 |
| COPYRIGHT – Anton Piller Order – cinematograph films – “Bollywood” features – pirate copies. |
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 with respect to the civil actions under Part V of the Copyright Act 1968 (Cth) ("Copyright Act”) and in particular section 131D of that Act. The Federal Magistrates Court has power to make an interlocutory order on an urgent application made without notice, pursuant to section 14 of the Federal Magistrates Court Act 1999 (Cth) and the Federal Magistrates Court Rules 2001 (Cth), rules 5.01 and 5.03(1)(d). The Federal Magistrates Court has exercised the above power to prevent infringements of copyright in relation to sound recordings. See Universal Music Australia Pty Ltd v N and J Nominees Pty Ltd [2003] FMCA 575 (Driver FM, 10 December 2003).
The criteria for the grant of an Anton Piller order
In Anton Piller, Ormrod LJ, with whom Shaw LJ agreed, set out the requirements for an Anton Piller order at p. 62:
There are three essential pre-conditions for the making of such an order. First, there must be an extremely strong prima facie case. Secondly, the damage, potential or actual, must be very serious for the applicant. Thirdly, there must be clear evidence that the defendants have in their possession incriminating documents or things, and that there is a real possibility that they may destroy such material before any application inter parties can be made.
The above test has been adopted in Australia. See Television Broadcasts Ltd v Nguyen (1988) 21 FCR 34 at 38 per Lee J in relation to cinematograph films and Microsoft Corporation v Goodview Electronics Pty Ltd (1999) 46 IPR 159 at 162 per Branson J in relation to computer programs.
Ormrod LJ noted in Anton Piller that such orders will rarely be made and only when there is no alternative way of ensuring that justice is done to the applicant (see ibid, pg 61). However, as noted by Whitford J in Rank Film Distributors Ltd v Video Information Centre [1982] AC 380 at 387, Ormrod LJ's expectations have not been fulfilled due to the large increase in pirated works and the efficacy of the Anton Piller orders in concluding proceedings of this kind.
A strong prima facie case
The first criterion for the granting of an Anton Piller order is that the Applicants must establish an extremely strong prima facie case that the Respondents have infringed the Applicants’ copyright in the Applicants’ Films, as alleged in the statement of claim. Cinematograph films are protected subject matter under section 86 of the Copyright Act, which grants to the owner of the copyright of the film the exclusive right to inter alia make a copy of the film. Sections 102 and 103 of the Copyright Act also provide that the copyright in a film will be infringed by a person importing for the purposes of sale and selling the film where the person has knowledge that the making of the film would infringe copyright.
The Applicants are the owners and/or exclusive licensees of the Applicants’ Films. Paragraph 11 of the statement of claim states:
The Applicants are the owners or exclusive licensees of the copyright in the “Bollywood” cinematograph films set out in attached Schedule 2 (“Applicants’ Films”), comprising the right to reproduce, import and sell the Applicants’ Films in Australia in digital video disc (“DVD”), video compact disc (“VCD”) and video cassette tape format (“Exclusive Rights”).
Paragraphs 5 to 11 of the affidavit of Trevor Choy state:
5.The Sixth to Tenth Applicants produce Bollywood cinematograph films in Mumbai, India, including the Applicants’ Films, as defined in paragraph 11 of the Statement of Claim. The First to Fifth Applicants distribute the Applicants’ Films in Australia.
6.I have reviewed the following written agreements in relation to the Applicants’ Films, by which the Sixth to Tenth Applicants license of [sic] assign their rights in the Applicants’ Films in Australia to the First to Fifth Applicants.
(a) Agreement dated 5 July 2003, by which RS Entertainment assigned to the Second Applicant the Exclusive Rights, as defined in paragraph 11 of the Statement of Claim, in the cinematograph film “Kuch Naa Kaho” for a period of 10 years from the date of delivery of the film to the Second Applicant…
(b) Agreement dated 9 December 2003, by which Vinod Chopra Productions assigned to the Second Applicant the Exclusive Rights in the cinematograph film “Munna Bhai MBBS” for a period of 10 years from the date of delivery of the film to the Second Applicant…
(c) Agreement dated 30 March 2004, by which Maruti International assigned to the Second Applicant the Exclusive Rights in the cinematograph film “Masti” for a period of 7 years from the date of delivery of the film to the Second Applicant…
(d) Agreement dated 23 June 2003, by which Narsimha Enterprises assigned to the Second Applicant the Exclusive Rights in the cinematograph film “Kyon Ho Gaya Na” for a period of 7 years from the date of delivery of the film to the Second Applicant…
(e) Agreement dated 18 October 2002, by which VR Pictures assigned to the Second Applicant the Exclusive Rights in the cinematograph film “Deewar” for a period of 10 years from the date of delivery of the film…
(f) Agreement dated 29 September 2000, by which the Seventh Applicant assigned to the Third Applicant the Exclusive Rights in the cinematograph film “Mohabbatein” for the period of 10 years from the date of delivery of the film to the Third Applicant…
(g) Agreement dated 17 October 2002, by which the Seventh Applicant assigned to the Third Applicant the Exclusive Rights in the cinematograph film “Saathiya” for the period from 20 December 2002 to 20 December 2012…
(h) Agreement dated 25 June 2003, by which the Eighth Applicant granted a licence to the Third Applicant of the Exclusive Rights in the cinematograph film “Kal Ho Naa Ho” for the period up to 31 December 2008…
(i) Agreement dated 2 April 2004, by which the Tenth Applicant granted a licence to the Fourth Applicant of the Exclusive Rights in the cinematograph film “Main Hoon Na” for a period of 5 years from the date of delivery of the film to the Fourth Respondent…
(j) Agreement dated 1 February 2002, by which Narasimha Enterprises assigned to the Fifth Applicant the Exclusive Rights in the cinematograph film “Khushi” for the period of 5 years from the date of delivery of the film to the Fifth Applicant…
7.I am informed by Marcus Georgiades and believe that each of the cinematograph films referred to in paragraph 6 above have been released in cinema format and delivered to the First to Fifth Applicants, such that the assignments and licences the subject of the agreements are currently in effect.
8.I have also reviewed the following written agreements in relation to the Applicants’ Films, by which the Sixth to Tenth Applicants license of [sic] assign their rights in the Applicants’ Films in Australia to the First to Fifth Applicants.
(a) Agreement dated 25 February 2004, by which the Seventh Applicant granted a licence to the Third Applicant of the Exclusive Rights in the cinematograph film “Hum Tum” for a period of 10 years from the date of first release of the film in DVD format…
(b) Agreement dated 12 July 2004, by which the Seventh Applicant granted a licence to the Third Applicant of the Exclusive Rights in the cinematograph film “Dhoom” for a period of 10 years from the date of first release of the film…
(c) Agreement dated 14 October 2004, by which the Ninth Applicant granted a licence to the Third Applicant of the Exclusive Rights in the cinematograph film “Veer Zaara” for a period of 10 years from the date of first release of the film in DVD format…
(d) Agreement dated 7 July 2003, by which the Ninth Applicant granted a licence to the Third Applicant of the Exclusive Rights in the cinematograph film “Koi … Mil Gaya” for a period of 3 years from the date of release of the films in video format…
9.I am informed by Marcus Georgiades and believe that each of the cinematograph films referred to in paragraph 8 above have been released in cinema format but not in DVD format, such that the assignments and licences the subject of the agreements are not currently in effect. Copyright in the Exclusive Rights in the films therefore remains with the Seventh, Ninth and Tenth Applicants as the producers of the films.
10.I have also reviewed an agreement dated 25 October 2004, by which the Sixth Applicant granted a licence to the First Applicant of the right to communicate the cinematograph film “Swades” to the public for a period of 3 years from the date of release of the film… I am informed by Marcus Georgiades and believe that the film has been released in cinemas in Australia. Copyright in the Exclusive Rights in the film remains with the Sixth Applicant as the producer of the film.
11.On the basis of the information contained in the above agreements and the information provided to me by Marcus Georgiades, I consider that copyright subsists in each of the Applicants’ Films and the Applicants are the owners or exclusive licensees of the copyright comprising the Exclusive Rights in Australia.
The Applicants have obtained DVDs from the Respondents which are unauthorised reproductions of the Applicants’ Films. In paragraph 33 of his affidavit, Marcus Georgiades deposes as follows:
I have reviewed the discs and packaging of the above films and for the same reasons outlined above, I immediately formed the view that they are unauthorised reproductions of the Applicants’ Films. I have also played and viewed each of the above DVDs and found that the quality of the image of the films is lower than would be expected of an authorised DVD of the film. For these reasons, I believe that the films reproduce the Applicants’ films and that the reproductions are not authorised by the Applicants.
I am satisfied that the above matters are sufficient to establish an extremely strong prima facie case against the Respondents.
Serious damage to the applicants
The second criterion for the granting of an Anton Piller order is that the Applicants must establish that the damage to them caused by the Respondents’ activities is very serious. The Applicants have suffered and continue to suffer substantial losses as a result of the activities of “pirates”, including the Respondents. Paragraphs 22 to 25 of the affidavit of Marcus Georgiades state as follows:
22.As a result of the above matters, the Applicants believe that they have suffered and continue to suffer substantial losses as a result of the unauthorised reproduction and distribution of Bollywood films in DVD, VCD and video cassette tape format. On the basis of my investigations, I believe that a large number of consumers of Bollywood films would not attend a cinema screening of a new release Bollywood film due to the fact that they are able to obtain an unauthorised copy of the film in DVD, VCD or video cassette tape format shortly after the release of the film.
23.On the basis of my visits to sellers of unauthorised copies of Bollywood films in DVD, VCD and video cassette tape format, I estimate that at least 2000 copies of a “blockbuster” Bollywood film would generally be sold in Australia during the cinema release of the film. I believe that this would mean that at least 30,000 consumers would view the unauthorised copy of the film. I also believe that at least 10,000 of those consumers would otherwise attend a cinema screening of the film if an unauthorised copy was not available.
24.The reduction in attendance at cinema screenings of Bollywood films is such that all but the biggest blockbuster movies are not profitable to the First Applicant.
25.The distribution of unauthorised copies of Bollywood films in DVD, VCD and video cassette tape format also has a significant impact on the Applicants’ sales of authorised DVDs. This is due largely to the price difference between the authorised and unauthorised copies. Whilst unauthorised copies can usually be obtained as a “double-feature for between $6 and $10, an authorised copy will usually cost approximately $29.95 for a single feature. In addition, by the time that an authorised DVD is released, the unauthorised copy will usually be a higher quality digital copy, rather than the lower quality camera print, such that consumers are unwilling to pay a premium for the authorised copy. It is difficult to quantify the Applicants’ losses from lost sales of DVDs as a result of unauthorised copies but I would estimate that sales of each release would be reduced by at least 1000 DVDs.
The Applicants are unable to take action against all pirates and believe that the Respondents are substantial distributors of infringing copies of the Applicants’ Films. Paragraphs 20 and 34 of the affidavit of Marcus Georgiades state as follows:
20. As a result of the above matters, the Australian market for Bollywood DVDs has a “culture of piracy” that the Applicants have found difficult to change. In this regard, the First Applicant has attempted to notify the various traders of the Applicants’ ownership of the copyright in their Bollywood films and to work with the traders to sell authorised copies at a price that is affordable to consumers but still profitable to the traders. These efforts have been largely unsuccessful and the difficulties of making “trap” purchase from wary traders and the large number of traders each selling a relatively small number of DVDs means that it is not viable for the Applicants to individually pursue the traders.
34. On the basis of the above mattes, I believe that the Respondents are one of the largest sellers of unauthorised copies of the Applicants’ films in DVD, VCD and video cassette tape format in Australia.
On 17 December 2004 the Applicants released a highly anticipated film (“Swades”), unauthorised copies of which are likely to arrive on the Australian market very soon. Paragraphs 16 and 39 of the affidavit of Marcus Georgiades, state respectively:
16.The first way [to obtain unauthorised copies] is from a person smuggling a video camera into a cinema shortly after the official release of the film. The recording is then transferred to a DVD, VCD or video cassette tape and distributed throughout the Indian community. These “camera prints” are generally of a low quality but are usually available very soon after the worldwide cinema release of a film. In many cases, a camera print is available in Australia within 7 days of the release of the film.
39.… On 17 December 2004, the First Applicant arranged for the release of the Bollywood film “Swades” in Australia. “Swades” is one of the most anticipated Bollywood blockbusters of 2004 and the First Applicant expects that it will be one of the most highly attended films since the First Applicant commenced business… Based on my experience with similar blockbuster movies, it is likely that unauthorised DVDs of “Swades” will be available in Australia from as early as 23 December 2004. Due to the popularity of “Swades”, it is also likely that most if not all of the unauthorised DVDs of “Swades” would be sold to consumers within a matter of days of release of the DVDs, making them virtually impossible to track down.
Distribution of those copies is likely to have a substantial impact on the attendances at cinema screenings of that film. See paragraphs 22 to 24 of the affidavit of Marcus Georgiades (above).
Effective protection of copyright in the above circumstances requires immediate seizure of infringing copies. See Rank Film Distributors Ltd v Video Information Centre [1982] AC 380 at 417 per Templeman LJ.
Possession of copies and information and risk of destruction
The third criterion of an Anton Piller order is that the Applicants must put forward clear evidence that the Respondents have in their possession infringing copies of the Applicants’ Films and/or information relating to the distribution of the Applicants’ Films and that there is a real possibility the Respondents may destroy such material before any application inter parties can be made. The Applicants have made trap purchases from the Respondents of unauthorised copies of the Applicants’ Films. In paragraphs 29 and 32 of the affidavit of Marcus Georgiades, he deposes as follows:
29.I purchased the DVD featuring “Kyun Ho Gaya Na” and “Masti” from the “Indian Entertainment Centre” for $10 in cash…
32.After my attendance at the “Indian Entertainment Centre” I took advice from the First Applicant’s solicitor, Trevor Choy. On the basis of that advice, I arranged for another director of the First Applicant, Mitu Lange, to attend the “Indian Entertainment Centre” to make further purchases of the unauthorised DVDs of the Applicants’ films. I am informed by Ms Lange and believe that she attended the “Indian Entertainment Centre” on 16 November 2004 and purchased copies of the following double-feature DVDs.
(a) “Run” and “Kuch Naa Kaho”;
(b) “Khakee” and “Kal Ho Naa Ho”;
(c) “Mohabbatein” and “Dil Pagai Hai”;
(d) “Main Hoon Na” and “Koi … Mil Gaya”;
(e) “Na Tum Jaano Na Hum” and “Hum Tum”;
(f) “Dhoom” and “Mere Yaar Ki Shaadi Hai”; and
(g) “Kyun Ho Gaya Na” and “Fida”.
In paragraph 6 of the affidavit of Mitu Lange, she states:
I purchased copies of the following double-feature DVDs from the “Indian Entertainment Centre” for $6 each by EFTPOS.
(a) “Run” and “Kuch Naa Kaho”;
(b) “Khakee” and “Kal Ho Naa Ho”;
(c) “Mohabbatein” and “Dil Pagai Hai”;
(d) “Main Hoon Na” and “Koi … Mil Gaya”;
(e) “Na Tum Jaano Na Hum” and “Hum Tum”;
(f) “Dhoom” and “Mere Yaar Ki Shaadi Hai”; and
(g) “Kyun Ho Gaya Na” and “Fida”.
The Applicants have also observed further copies of the Applicants’ films at the Respondents’ premises. See paragraph 27 of the affidavit of Marcus Georgiades:
On 11 September 2004, I attended the “Indian Entertainment Centre” and found that it was a store that specialised in the sale of Bollywood films in DVD, VCD and video cassette tape format. I observed that a large number of unauthorised copies of Bollywood films were displayed on shelves in the “Indian Entertainment Centre”. In particular, I observed a copy of DVD covers featuring each of the films set out in paragraphs 11 and 12, other than “Veer Zaara” and “Swades”, which had not been released at that time.
At paragraph 4 of her affidavit, Mitu Lange deposed:
On 16 November 2004, I attended the “Indian Entertainment Centre” and found that it was a store that specialised in the sale of Bollywood films in DVD, VCD and video cassette tape format. I observed that a large number of unauthorised copies of Bollywood films were displayed on shelves in the “Indian Entertainment Centre”. In particular, I observed a copy of DVD covers featuring each of the Applicants’ Films, other than “Veer Zhaara”, which had been released only 4 days earlier, and “Swades”, which had not been released at that time.
The Applicants have also heard from the Respondents and their employees that the Respondents would supply further copies of the Applicants’ Films on request. In paragraph 31 of his affidavit, Marcus Georgiades deposes as follows:
As I attempted to leave the “Indian Entertainment Centre”, the Second Respondent stopped me and handed me a copy of a brochure entitled “Bollywood Masala, Indian Film Festival”… This is a film festival organised by the First Applicant each year and held in Sydney as part of its efforts to promote the Bollywood film industry in Australia. The Second Respondent told me that if I wanted to purchase copies of any film showing at the above festival listed in the brochure, he would be able to supply me with copies. I have reviewed the brochure and note that it refers to the Applicants’ films “Main Hoon Na”, “Hum Tum”, “Kal Ho Naa Ho”, “Kuch Na Kaho” and “Munna Bhai MBBS”.
Paragraph 9 of the affidavit of Mitu Lange states:
I also asked the woman about whether the film “Veer Zaara” was available. She told me that the Indian Entertainment Centre would have a copy available on DVD in 2 days and that if I called her she would put a copy aside for me.
The Court should be prepared to apply “common wisdom” in assessing the risk of destruction in the case of copyright in cinematograph films. See Television Broadcasts Ltd v Nguyen (1988) 21 FCR 34 at 38. In relation to Mareva orders the Court has held that it is entitled to infer a risk of dissipation based on an “uneasy feeling” or a “deep suspicion”.
Anton Piller orders were developed as a response by the English Courts to increases in copyright piracy of cinematograph films and sound recordings in the late 1970s and early 1980s. See Rank Films Ltd v Video Information Centre [1982] AC 380 at 387. The order was then and remains particularly adapted to such activities because of the speed and ease with which reproductions of cinematograph films and sound recordings can be created, distributed and destroyed.
The risk is particularly significant in the case of the Respondents due to the following factors:
a.the nature of the “Bollywood” film industry in Australia. See paragraph 36 of the affidavit of Marcus Georgiades:
… the close knit nature of the Indian community in Australia and the “culture of piracy” in the Bollywood film industry discussed above is such that the Respondents would have ready access to a network of persons to whom they could sell their unauthorised copies of the films at very short notice. In my experience, it would be impossible for the Applicants to trace the copies through such a network.
b.the ease and lack of expense involved in destroying DVDs, VCDs and video cassette tapes. See paragraph 37 of the affidavit of Marcus Georgiades:
… DVDs are by their nature very easy to destroy at short notice. The DVDs as sold consist of a standard plastic contained into which the promotional paper sleave is inserted together with the disc itself. In order to destroy all evidence of the product, the Respondents need only remove the paper sleave and disc from the cover and burn them. Based on my experience, it is possible to destroy a large number of DVDs by this method in a short period of time with minimal effort.
c.a likely lack of proper accounts and record keeping by the Respondents. See paragraph 38 of the affidavit of Marcus Georgiades:
… based on my experience, the Respondents are unlikely to have detailed records of their stock or sales of unauthorised copies of DVDs of the Applicants’ films, such that the DVDs could be sold or destroyed without any paper trail that might indicate the nature and scale of the Respondents’ activities.
d.the likely possession of DVDs of a highly popular new release “Bollywood” film that are likely to be sold very quickly. See paragraph 39 of the affidavit of Marcus Georgiades (above).
e.the ease with which the Respondents could dispose of the copies of the Applicants’ Films within the Indian community in Australia. See paragraph 40 of the affidavit of Marcus Georgiades:
… in my experience, distributors of Bollywood films in Australia are difficult to take effective action against due to their networks in the Indian community, which allow them to quickly sell or otherwise dispose of their goods, their lack of detailed business records, their lack of substantial assets, and the fact that they are willing to take steps to conceal and destroy unauthorised copies of Bollywood films when faced with the prospect of Court action.
and
f.the lack of substantial assets of the Respondents. See paragraph 41 of the affidavit of Marcus Georgiades:
In relation specifically to the Respondents, I am informed by Trevor Choy and believe that his searches indicate that the “Indian Entertainment Centre” is an unincorporated business, the registered proprietor of which has been the First Respondent since about 30 April 2003. I am informed by Trevor Choy and believe that the premises from which the business operates are not owned by the Respondents.
Paragraphs 13 and 14 of the affidavit of Trevor Choy state:
I arranged for a business name search of the name “Indian Entertainment Centre”… The [search] extract states that the registered proprietor of the business is a Nalisha Luthra of 4/60 Marion Street, Harris Park, New South Wales, the First Respondent to this proceeding. The extract states that the First Respondent has been the registered proprietor since 30 April 2003.
I also arranged for a title search of the land located at Shop No 2, 96-98 Wigram Street, Harris Park, New South Wales… The [search] results show that Shop No 2, 96-98 Wigram Street, Harris Park is recorded on Folio 2/SP35779, which is owned by Eaboda Pty Ltd. The results show that a lease was recorded on the title to Anupma Kapoor and Parvesh Kumar Kapoor until 15 January 2000 and that no subsequent leases are recorded. I also arranged for a company search of Eaboda Pty Ltd… The results show that neither of the Respondents is a director or shareholder of Eaboda Pty Ltd.
The above matters are sufficient to establish possession and a risk of destruction by the Respondents of unauthorised copies of the Applicants’ Films.
The discretionary factors in deciding whether to make an Anton Piller order and to grant an interlocutory injunction
The Court will balance the potential harm to the applicants if an order is withheld against the potential harm to the respondents if it is granted. The more severe the effect of the orders sought the greater reluctance of the courts to grant it. I refer again to Rank Film Distributors Ltd v Video Information Centre [1982] AC 380 at 417.
I am satisfied that the Applicants face substantial losses if the draft order is not made. The Applicants seek an order that is as narrow as possible to protect their legitimate interests. In particular the Applicants do not seek to remove from the possession of the Respondents any equipment or information that will interfere with the Respondents’ ability to conduct their business. As a result of the narrow scope of the orders sought by the Applicants, any loss to the Respondents as a result of the draft order being made is likely to be very low. I am satisfied in particular that the cost and replacement value of the items to be seized is low and the draft order is unlikely to have a significant impact on the ability of the Respondents to continue to conduct their business.
The Applicants have given an undertaking to comply with any costs order made in favour of the Respondents. That is contained in paragraph (g) of the draft order and paragraph 15 of the affidavit of Trevor Choy. The draft order is consistent with the undertakings and conditions set out in the Federal Court Practice Note No. 10.
In all the circumstances I am satisfied that the Court should exercise its discretion to make orders in the form of the draft order sought by the Applicants. Accordingly I make the orders in accordance with the draft order submitted by the Applicants and otherwise adjourn all extant applications to 27 January 2005 at 9.30 am and I reserve liberty to expand upon these reasons.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Connolly FM
Associate: N. Lane
Date: 24 December 2004
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