Much More Music Pty Ltd v Australian Customs Service

[1998] FCA 1118

FEDERAL COURT OF AUSTRALIA

COPYRIGHT – seizure of imported goods – application for interlocutory relief for release of goods – no point of general principle

MUCH MORE MUSIC PTY LTD v AUSTRALIAN CUSTOMS SERVICE AND ANOR

NG 906 of 1998

MADGWICK J
SYDNEY
3 SEPTEMBER 1998

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 906  of   1998

BETWEEN:

MUCH MORE MUSIC PTY LTD
APPLICANT

AND:

CHIEF EXECUTIVE OFFICER, AUSTRALIAN CUSTOMS SERVICE
FIRST RESPONDENT

AUSTRALASIAN MECHANICAL COPYRIGHT OWNERS SOCIETY LTD
SECOND RESPONDENT

JUDGE(S):

MADGWICK

DATE OF ORDER:

3 SEPTEMBER 1998

WHERE MADE:

SYDNEY

SHORT MINUTES OF ORDER

THE COURT ORDERS THAT:

1. The seized copies referred to in paragraph 1 of the Amended Application be released to the applicant subject to the following conditions:

(a)the applicant make a list identifying each of the compact discs and cassette tapes seized by the respondent being that part of the consignment, the subject of Air Waybill No. 09050711404 in the custody or control of the respondent as at the date of this order (“the seized copies”);

(b)the applicant until further order keep proper records of the title, number, purchaser and price of each seized copy sold by it;

(c)the applicant will deposit the proceeds of the sale of each of the seized copies into a trust account to be held by the applicant’s solicitor;

(d)the applicant will keep two copies to be chosen by the second respondent of each title (where relevant compact disc and in cassette form) of each of the seized copies in the custody of the respondent as of today;

(e)the applicant release one copy of each title referred to in (d) to the solicitors for the objectors.

1. The applicant is to produce to the registry on Monday, 7 September, all copies of each title still held by it.

2. The applicant has leave to amend the proceedings to seek relief under the Administrative Decisions Judicial Review Act 1977 (Cth).

3. Leave to appeal from the Court’s refusal to order a stay granted.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 906 of 1998

BETWEEN:

MUCH MORE MUSIC PTY LTD
APPLICANT

AND:

CHIEF EXECUTIVE OFFICER, AUSTRALIAN CUSTOMS SERVICE
FIRST RESPONDENT

AUSTRALASIAN MECHANICAL COPYRIGHT OWNERS SOCIETY LTD
SECOND RESPONDENT

JUDGE(S):	MADGWICK
DATE:	3 SEPTEMBER 1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(revised from transcript)

HIS HONOUR:  I will just make the position clear.  I make orders in accordance with the short minutes as amended, initialled by me and dated today's date.  In circumstances of urgency I do this because I think that there is a triable case made by the applicant that the detention of the compact discs imported by the applicant is unlawful. 

On the balance of convenience, I regard the matter as somewhat finely balanced.  The principal matter of inconvenience to the applicant is the possibility (as to which there is only the faintest indication that it might be a reality) that, assuming that the compact discs in question are unauthorised copies, they might also be inferior copies so that the copyright owners might suffer some loss of consumer confidence in others of their products.  On the other hand, any other kind of harm to the second respondent and those derivatively interested as copyright owners, it seems to me, could comfortably be accommodated by various forms of monetary compensation.

In relation to the inconvenience to the applicant there is a prima facie case of illegality.  It is not the fault of the applicant that matters have not proceeded more swiftly than they have from the time the goods landed in Australia and were called to the attention of the Customs Service.  It also faces the loss not only of profits over a peak retail selling time, namely the few days approaching Fathers Day (which is next Sunday, 6 September), but also the loss of confidence in it, difficult to quantify, both as a well supplied retailer and as a well supplied wholesaler; it apparently trades in both markets.

In a fairly finely balanced matter it seems to me that the orders I am making will best accommodate the position.  Those orders are as follows:

1. The seized copies referred to in paragraph 1 of the Amended Application be released to the applicant subject to the following conditions:

(a)the applicant make a list identifying each of the compact discs and cassette tapes seized by the respondent being that part of the consignment, the subject of Air Waybill No. 09050711404 in the custody or control of the respondent as at the date of this order (“the seized copies”);

(b)the applicant until further order keep proper records of the title, number, purchaser and price of each seized copy sold by it;

(c)the applicant will deposit the proceeds of the sale of each of the seized copies into a trust account to be held by the applicant’s solicitor;

(d)the applicant will keep two copies to be chosen by the second respondent of each title (where relevant compact disc and in cassette form) of each of the seized copies in the custody of the respondent as of today;

(e)the applicant release one copy of each title referred to in (d) to the solicitors for the objectors.

1. The applicant is to produce to the registry on Monday, 7 September, all copies of each title still held by it.

2. The applicant has leave to amend the proceedings to seek relief under the Administrative Decisions Judicial Review Act 1977 (Cth).

The respondent has also, in anticipation of these orders, applied for a stay of proceedings.  I refuse that because so to do would be, in the circumstances of the likely unavailability of a Full Court, entirely to deprive the applicants of the benefits of the orders that I propose, and while I think the matter is an appropriate one for appeal, it doesn't seem to me (even though it is invidious for me to pass on this) that there is an overwhelming prospect of success on an appeal.

I also grant leave to appeal from my refusal to order a stay.

I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick

Associate:

Dated:            3 September 1998

Counsel for the Applicant:	S Goddard and M Green
Solicitor for the Applicant:	White and Downey
Solicitor for the First Respondent:	Australian Government Solicitor
Counsel for the Second Respondent	D Catterns QC and R Cobden
Solicitors for the Second Respondent:	Gilbert and Tobin
Date of Hearing:	3 September 1998
Date of Judgment:	3 September 1998