Phonographic Performance v Adelaide City Entertainment (No.2)

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

1. Application for adjournment dismissed.

2. Respondents to pay the applicants’ costs.

3. 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

1. 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.

2. 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.

3. 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…