PPCA v Camilleri - [2012] FMCA 147

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PPCA & ORS v CAMILLERI

[2012] FMCA 147

PRACTICE AND PROCEDURE – Application – summary judgment.

COPYRIGHT – Musical work – where music played from jukebox without payment of licence fees – where moneys paid after proceedings brought – whether applicant has copyright – whether copyright infringed – damages – whether to grant injunction.

Federal Magistrates Court Rules 2001, rr.13.03B, 13.07
Copyright Act 1968, ss.115(4), 126

Foxtel Management Pty Ltd v The Mod Shop Pty Ltd [2007] FCA 463
Phonographic Performance Company of Australia Limited & Ors v Jabouri Brothers Pty Ltd & Ors [2011] FMCA 799
Raben Footwear Pty Ltd v Polygram Records Inc & Ors [1997] 145 ALR 11
Autodesk Australasia Pty Ltd & Cheung v Cheung [1990] 17 IPR at 76

Applicants:

PHONOGRAPHIC PERFORMANCE COMPANY OF AUSTRALIA LIMITED (ACN 000 680 704) AND OTHERS

Respondent:

ALAHANA CAMILLERI

File Number:

SYG 2622 of 2011

Judgment of:

Raphael FM

Hearing date:

15 February 2012

Date of Last Submission:

15 February 2012

Delivered at:

Sydney

Delivered on:

15 February 2012

REPRESENTATION

Counsel for the Applicants:

Mr Balafoutis

For the Respondent:

No appearance

ORDERS

The Respondent, whether by herself, her servants, agents or otherwise, be permanently restrained from causing or authorising any sound recordings licensed to the First Applicant (being those sound recordings recorded under the labels listed at being heard in public, without the licence of the First Applicant or the respective copyright owners(s).
The Respondent shall pay the First Applicant the sum of $30,000.00 pursuant to s115(4) of the Copyright Act 1968 (Cth) (Act).
The Respondent to pay the Applicants’ costs and disbursements of and incidental to the Application and Application in a case, fixed in the sum of $8,200.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2622 of 2011

PHONOGRAPHIC PERFORMANCE COMPANY OF AUSTRALIA LIMITED (ACN 000 680 704) AND OTHERS

Applicants

And

ALAHANA CAMILLERI

Respondent

REASONS FOR JUDGMENT

On 16 November 2011 the applicants, who are a collection society and the copyright owners for whom it collects license payments for the playing of recorded music in various forms, commenced proceedings against Ms Camilleri arising out of her consistent failure to make payment of the appropriate license fees for a jukebox in premises which she controlled known as “X on Albert” situated at 196 Albert Street, Sebastopol, Victoria 3350. The application was supported by affidavit from Lynne Small and Tina Redwood.
The respondent did not file a Notice of Appearance and was not present when the matter was first called before me for a directions hearing on 13 December 2011. On that date I made a number of orders the three most relevant ones being:
i)“The court notes that the respondent to the application has now been served with the application and supporting affidavits.
ii)The respondent is to file and serve on the applicants a response to the application no later than 27 December 2011.
iii)In default of compliance with order (2) the applicants may have leave and liberty to…

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.

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Details

Case: [2012] FMCA 147
Decision Date: 15 February 2012

CaseChat Overview and Summary

The case of PPCA v Camilleri was heard in the Federal Circuit Court of Australia. The plaintiff, PPCA, sought summary judgment against the defendant, Ms Camilleri, for copyright infringement. PPCA, a collection society, alleged that Ms Camilleri had operated a venue, X on Albert, which played music from a jukebox without paying the requisite licence fees. Despite demands for payment, Ms Camilleri did not remit the fees to PPCA. PPCA sought an injunction to prevent Ms Camilleri from continuing to play the music without a licence, as well as damages and costs.

The legal issues before the court were whether Ms Camilleri had infringed PPCA's copyright, whether she had any defence to the claim, and if so, what orders should be made. The court needed to consider whether Ms Camilleri had been the person responsible for the operation of the venue and whether the music played at the venue was indeed licensed to PPCA. The court also had to determine what orders, if any, should be made against Ms Camilleri.

The court found that Ms Camilleri had been the operator of the venue and was therefore responsible for any copyright infringements that occurred. The court was satisfied that the music played at the venue was indeed licensed to PPCA and that Ms Camilleri had not paid the requisite fees. The court noted that PPCA had acted diligently in pursuing the matter and that Ms Camilleri had acted egregiously in refusing to pay the fees despite having the funds available. The court was satisfied that there was no reasonable prospect of Ms Camilleri successfully defending the claim and that summary judgment was appropriate. The court granted the injunction sought by PPCA and ordered Ms Camilleri to pay damages and costs.

In summary, the court granted the orders sought by PPCA, including an injunction preventing Ms Camilleri from playing licensed music without a licence, an order for damages in the sum of $30,000.00, and an order for costs in the sum of $8,200.00.

Orders

Orders of the court

The Respondent, whether by herself, her servants, agents or otherwise, be permanently restrained from causing or authorising any sound recordings licensed to the First Applicant (being those sound recordings recorded under the labels listed at www.ppca.com.au/labels/list-of-current-licensors) being heard in public, without the licence of the First Applicant or the respective copyright owners(s).

The Respondent shall pay the First Applicant the sum of $30,000.00 pursuant to s115(4) of the Copyright Act 1968 (Cth) (Act).

The Respondent to pay the Applicants’ costs and disbursements of and incidental to the Application and Application in a case, fixed in the sum of $8,200.00.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Rule 13.03B of the Federal Magistrates Court Rules 2001[1] deals with orders on default and allows the court at (d) to give judgment or make any other order against the respondent. Rule 13.07 of the Rules deals with disposal of a matter by way of summary judgment and is in the following form:[1] “Rules”“13.07 Disposal by summary judgment(1) This rule applies if, in a proceeding:(a) in relation to the whole or part of a party’s claim there is evidence of the facts on which the claim or part is based; and(b) either:(i) there is evidence given by a party or by some responsible person that the opposing party has no answer to the claim or part; or(ii) the Court is satisfied that the opposing party has no reasonable prospect of successfully defending the claim or part.(2) The Court may give judgment on that claim or part and make any orders or directions that the Court considers appropriate.(3) If the Court gives judgment against a party who claims relief against the party obtaining the judgment, the Court may stay execution on, or other enforcement of, the judgment until determination of that claim.” Because of the very thorough manner in which this collection society has on this occasion and in the past dealt with matters, I prefer to give summary judgment under r.13.07, because I believe there is sufficient evidence before me to satisfy me that the judgment should be entered against the respondent. Mr Balafoutis, who appears on behalf of the applicants, has provided me with some very helpful submissions. His outline of submissions paraphrases the affidavits in support and provides the court with authorities for the proposed orders. I intend to leave the outline with the file so that it can be seen clearly the basis upon which the orders have been made. But I am sensible of the requirement to make it clear in these reasons how I have come to my decision. Ms Camilleri was the principal shareholder and director in two companies that operated the venue “X on Albert”. The first company was known as “X on Albert Pty Ltd”. But that company ceased operations by about 2006 and thereafter the venue was operated by a company known as “Airellimac Pty Ltd”. That company was deregistered on 5 March 2010. Ms Camilleri was the sole director and shareholder of that company and the affidavit evidence of the investigations and communications between the applicants and Ms Camilleri reveals that she was at all material times the person in charge. It seems to me that since the deregistration of the second company Ms Camilleri has been the operator of the venue and therefore the person primarily responsible for any infringements of copyright that may have occurred. The collection society has been on Ms Camilleri’s case for some years. The venue had a jukebox from which recorded music was played throughout the venue. There is no record of any license fees being paid despite demands being made from 2003. In case it should be suggested that the collection society has acted in a less than diligent manner it should be noted that the fee for a jukebox of this nature is only about $100.00 per annum. Collection societies are not over-endowed with funds for enforcement. In any event, by November 2010 the society had run out of patience with Ms Camilleri and contacted Ms Camilleri to advise her that an inspector would attend the venue. During the course of the telephone conversation on 8 November 2010 Ms Camilleri confirmed that there was a jukebox on the premises and on 22 November 2010 the society sent a letter to Ms Camilleri enclosing an invoice in the sum of $441.87. It is at this stage that the conduct of Ms Camilleri became particularly egregious because, after some communication with the supplier of the jukebox, that supplier sent to Ms Camilleri, on 6 December 2010, the sum of $250.00 and on 11 February 2011 the sum of $191.00, making up the total of $441.00 required for the license and for some years arrears. But Ms Camilleri did not pass this money on to the society. She kept it. And she continued to refuse to make any payment to the society or respond to their correspondence. In May 2011 the society requested that Ms Redwood, an auditor from a company known as “Mystery Shopping Auditing Australasia”, attend the premises and provide information as to the music being played there. She did this as set out in her affidavit and noted that records by Green Day, The Beatles, George Michael, Cold Chisel, The Living End and The Veronicas were all played. The copyright owners of those records are all represented by the collection society and I am satisfied from the evidence that has been provided to me that those records were played.

Ratio Decidendi

Legal Principle Established

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