Phonographic Performance v Adelaide City Entertainment (No.2)
[2005] FMCA 1075
•28 July 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| PHONOGRAPHIC PERFORMANCE & ORS v ADELAIDE CITY ENTERTAINMENT (No.2) | [2005] FMCA 1075 |
| PRACTICE & PROCEDURE – Copyright – application for adjournment to prepare for application under Part 16 Rule 16.05(2)(a) of the Federal Magistrates Court Rules – where respondents provide no reasonable grounds – where director of party leaves the country knowing of the application – where another director does not go on affidavit to explain – where party is late in making application. |
| Copyright Act 1968, ss.115(2), 115(4), 132 Federal Magistrate Court Rules 2001, Part 16, Rule 16.05(2)(a) |
| Applicant: | PHONOGRAPHIC PERFORMANCE COMPANY OF AUSTRALIA & ORS |
| Respondent: | ADELAIDE CITY ENTERTAINMENT PTY LTD |
| File Number: | SYG 1138 of 2005 |
| Judgment of: | Raphael FM |
| Hearing date: | 28 July 2005 |
| Date of Last Submission: | 28 July 2005 |
| Delivered at: | Sydney |
| Delivered on: | 28 July 2005 |
REPRESENTATION
| Counsel for the Applicant: | Mr Hennessey |
| Counsel for the Respondent: | Mr Russell |
ORDERS
Application for adjournment dismissed.
Respondents to pay the applicants’ costs.
Order 6 of the orders dated 29 June 2005 shall stand.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1138 of 2005
| PHONOGRAPHIC PERFORMANCE COMPANY OF AUSTRALIA & ORS |
Applicant
And
| ADELAIDE CITY ENTERTAINMENT |
Respondent
REASONS FOR JUDGMENT
On 29 June 2005 I handed down judgment in this matter after hearing Mr Balafoutis for the applicants at length and considering a substantial body of evidence. As had been made clear in my judgment the respondents did not appear, although they had been given notice of the application. The matter had been adjourned once before. The orders I made were for injunctions and for damages under s.115(2) of the Copyright Act 1968 (the “Act”) and for additional damages of a substantial sum under s.115(4). Because I was concerned that the respondents may not have truly realised the seriousness of their conduct and the possible effects I made an order staying the award of additional damages until today, provided the respondent filed prior to 20 July an application returnable today to be heard on that part of the award.
Nothing in my orders was intended, nor could it, to prevent the respondent making an application under Part 16, Rule 16.05(2)(a) of the Federal Magistrates Court Rules for the court to vary or set aside its judgment on the grounds that the order was made in the absence of a party. However, this is a matter upon which the court has discretion.
On 22 July, two days after the deadline, there was filed in court a response to the original proceedings, claiming orders number 4, 5, and 6 made by me on 29 June be set aside and an affidavit of a Mr Pike who appears to be a director of the respondent company. The affidavit makes reference to certain negotiations which had been ongoing between the respondent and the applicants prior to the hearing. The affidavit contains a number of pieces of information including at paragraph 17 the following:
“As indicated in annexure “JP 1” the Respondent by way of Dominic Tenuta initiated offers of settlement to the First Applicant. At no time have I received any benefit by my failure to pay a licence fee as at all times I intended, and continued to intend to pay the licence fee. Once the fee is set it will be paid.”
And at 20:
I agree that I should pay to the Applicants damages pursuant to section 115(2) of the Act and awards of interest and costs accordingly.
And at 21:
I acknowledge that the respondent must pay licence fees but dispute the amounts assessed by this honourable court. I seek that orders 4, 5, and 6 made by this honourable court on 29 June be set aside ...
Mr Russell, who appears on behalf of the respondents, has been placed in an invidious position. The affidavit of Mr Pike was sworn on
21 July the day after my orders, which have been provided to the respondents by the applicants and by the court some three week prior thereto. There is no explanation in Mr Pike's affidavit as to why it took him so long to seek legal advice. And most importantly there is absolutely nothing in this affidavit concerning Mr Pike's intention to travel to Europe and to make himself unavailable for the hearing today. But that is what has happened.
Mr Russell seeks an adjournment. He seeks an adjournment so that he can properly prepare a case to put to me to exercise my discretion under Rule 16.05(2)(a) and also to exercise his client's right to challenge the award of additional damages. He tells me that his client will be returning to Australia on 11 August and seeks until 18 August to put on his evidence. Mr Russell is constrained by a lack of instructions from giving me any further information that might persuade me that the decisions which I made on 28 June 2005 were so obviously incorrect that it would be in the interests of justice as well as his client for me to reopen the proceedings. He has also failed to tell me why Mr Tenuta, who is the person who originally negotiated with the applicants has not been able to put on an affidavit or provide him with instructions and that is a matter which I take very seriously indeed.
Mr Hennessy, who now appears for the applicants, argues that I should not grant any further adjournments, that the respondent’s right to come back to the court to debate the award of additional damages expired on 20 July and had not been exercised by that time and also that there is absolutely no evidence to establish the unreasonableness of the order or any excuse as to why the respondents did not appear at the hearing to as to exercise my discretion to reopen the matter. The only reference to non-appearance at the hearing is in Mr Pike's affidavit indicating that he believed that there were continuing negotiations between the parties and therefore an appearance was unnecessary. A careful reading of the letters which are attached to his affidavit together with a letter from the applicants to the respondents dated 28 June 2005 makes it quite clear to me that any reasonably literate person would understand that the negotiations had broken down and the case was proceeding. I have also been provided with an affidavit of Jason McLennan sworn on 27 July 2005. He deposes, inter alia, to being provided with information from one Natalie Mead that at least one record in which the copyright is held by the second applicant was played in the nightclub on 2 July 2005. This would hint at the possibility of continued breaches of the injunctions, which even Mr Russell and his clients accept should be maintained.
Breach of copyright is a very serious matter. It is not just a civil wrong it is also a criminal offence (s.132 of the Act). The courts of this country should expect that where proceedings are commenced parties would appear to defend their rights if they wished to do so. If they do not appear then the court would expect an explanation and if the court grants a party an indulgence on the basis of its non-appearance then the court expects that any limitations on that indulgence would be respected by the party to whom it is given. In this case no reasonable explanation has been given to me as yet for the failure of the respondents to attend the hearing. No explanation whatsoever has been given to me as why the respondents did not earlier make the application that they have now made. And in particular no explanation has been given to me as to why this is all dependent upon Mr Pike, who has chosen to go overseas at a time when he knew full well that the case was to be heard today. Likewise there is no explanation of why Mr Tenuta cannot give instructions and cannot put on affidavits when he was quite happy to negotiate with the applicants over the breaches of their copyright concerning which they complain.
I am disinclined to grant an adjournment. I think the conduct of the respondents has been reprehensible and inexcusable. It shows a cavalier attitude towards this court and towards the Act that this court intends to enforce. I dismiss the application for an adjournment. I order that the respondents pay the applicants' costs. Insofar as it necessary to do so,
I will state that order 6 of my orders shall stand.
I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
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