Re.Group Pty Ltd v Kazal

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FEDERAL COURT OF AUSTRALIA

Re.Group Pty Ltd v Kazal [2016] FCA 1485

File number NSD 2080 of 2016
Judge: GRIFFITHS J
Date of judgment: 6 December 2016
Catchwords:

TORTS – interlocutory injunctive relief sought pertaining to claims of breach of copyright and injurious falsehood

PRACTICE AND PROCEDURE – interlocutory injunctive relief

Cases cited:

AMI Australia Holdings & Anor Pty Ltd v Fairfax Media Publications Pty Ltd [2010] NSWSC 1395.

Beechwood Homes (NSW) Pty Ltd v Camenzuli [2010] NSWSC 521

Joyce v Sengupta [1993] 1 WLR 337; 1 All ER 897

Menulog Pty Ltd v TCN Channel Nine Pty Ltd [2012] NSWSC 247

Neville Mahon v Mach 1 Financial Services Pty Ltd [2012] NSWSC 651

Palmer-Bruyn and Parker Pty Ltd v Parsons [2001] HCA 69, 208 CLR 388

Swimsure (Laboratories) Pty Limited v McDonald [1979] 2 NSWLR 796

Date of hearing: 6 December 2016
Registry: New South Wales
Division: General Division
National Practice Area: Intellectual Property
Sub-area: Copyright and Industrial Designs
Category: Catchwords
Number of paragraphs: 36
Counsel for the Applicants: Mr A Leopold SC with Mr R Jedrzejczyk
Solicitor for the Applicants: Ashurst Australia
Counsel for the First Respondent: Mr R Rasmussen
Solicitor for the First Respondent: Kiki Kyriacou Lawyers
Counsel for the Second Respondent: Mr R Potter
Solicitor for the Second Respondent: Mitry Lawyers

ORDERS

NSD 2080 of 2016
BETWEEN:

RE.GROUP PTY LTD ACN 166 255 947

First Applicant

NAVEEN DAVID SINGH

Second Applicant

AND:

ADAM KAZAL

First Respondent

CHARIF KAZAL

Second Respondent

JUDGE:

GRIFFITHS J

DATE OF ORDER:

6 DECEMBER 2016

TO: ADAM KAZAL, First Respondent, and CHARIF KAZAL, Second Respondent

IF YOU:

REFUSE OR NEGLECT TO DO ANY ACT WIHIN THE TIME SPECIFIED IN THIS ORDER FOR THE DOING OF THE ACT; OR

DISOBEY THE ORDER BY DOING AN ACT WHICH THE ORDER REQUIRES YOU NOT TO DO,

YOU WILL BE LIABLE TO IMPRISONMENT, SEQUESTRATION OF PROPERTY OR OTHER PUNISHMENT.

ANY OTHER PERSON WHO KNOWS OF THIS ORDER AND DOES ANYTHING WHICH HELPS OR PERMITS YOU TO BREACH THE TERMS OF THIS ORDER MAY BE SIMILARLY PUNISHED

THE COURT ORDERS THAT:

Upon the Applicants providing the usual undertaking as to damages:

1.An order that, until the final determination of this proceeding or earlier further order, the First Respondent, by himself, his employees, servants or agents, be restrained from using the photographs of the Second Applicant that are Annexure "A" to the Originating Application in any way that would infringe the copyright in those photographs without first obtaining the permission or licence of the owner of the copyright in those photographs.

2.An order that, until the final determination of this proceeding or earlier further order, the Second Respondent, by himself, his employees, servants or agents, be restrained from using the photographs of the Second Applicant that are Annexure "A" to the Originating Application in any way that would infringe the copyright in those photographs without first obtaining the permission or licence of the owner of the copyright in those photographs.

3.An order that the First…

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Details
Case
[2016] FCA 1485
Decision Date

CaseChat Overview and Summary

Re.Group Pty Ltd and another sought interlocutory injunctive relief against two respondents. The applicants claimed that the respondents had used photographs of the second applicant without consent and had made defamatory statements about the second applicant. The applicants sought relief against the respondents for copyright infringement and injurious falsehood. The Federal Court was asked to decide if the applicants were likely to succeed in their claims and whether the balance of convenience favoured the grant of interlocutory relief.

The court considered the likelihood of the applicants succeeding on the merits of their claims. The applicants needed to demonstrate a serious question to be tried. The court also considered the balance of convenience, weighing the harm that granting or refusing the injunction would cause the parties. The court found that the applicants had made out a strong case for the relief sought. The harm caused by the respondents’ actions outweighed any harm that might be caused to the respondents by the grant of the injunction. The court determined that it was appropriate to grant the relief sought.

The court ordered that the respondents were restrained from using the photographs in question and from publishing certain representations without the permission of the copyright holder. The respondents were also ordered to remove the photographs from certain vehicles and a website. The first respondent was ordered to remove the photographs from two vehicles and the second respondent from a website. The respondents were restrained from publishing specific representations without consent. The costs of the application were ordered to be costs in the cause, and liberty to apply was granted with 48 hours’ notice.

Orders

Orders of the court

Upon the Applicants providing the usual undertaking as to damages:

1. An order that, until the final determination of this proceeding or earlier further order, the First Respondent, by himself, his employees, servants or agents, be restrained from using the photographs of the Second Applicant that are Annexure "A" to the Originating Application in any way that would infringe the copyright in those photographs without first obtaining the permission or licence of the owner of the copyright in those photographs.

2. An order that, until the final determination of this proceeding or earlier further order, the Second Respondent, by himself, his employees, servants or agents, be restrained from using the photographs of the Second Applicant that are Annexure "A" to the Originating Application in any way that would infringe the copyright in those photographs without first obtaining the permission or licence of the owner of the copyright in those photographs.

3. An order that the First Respondent cause to be removed, within 48 hours, the photographs of the Second Applicant that are Annexure "A" to the Originating Application from the motor vehicles bearing New South Wales registration numbers CE 34 AC and CE 35 AC, and from any structure, building, signpost, pole, wall, mobile or immobile structure or other motor vehicle to which it has been affixed or displayed by him or his employees, servants or agents.

4. An order that the Second Respondent cause to be removed, within 48 hours, the photographs of the Second Applicant that are Annexure "A" to the Originating Application from the Website referred to in the Statement of Claim.

5. An order that, until the final determination of this proceeding or earlier further order, the First Respondent, by himself, his employees, servants or agents, be restrained from publishing:

(a) each of the First Applicant Representation and the Second Applicant Representation referred to in the Statement of Claim;

(b) any representation substantially the same as either the First Applicant Representation or the Second Applicant Representation.

6. An order that, until the final determination of this proceeding or earlier further order, the Second Respondent, by himself, his employees, servants or agents, be restrained from publishing:

(a) each of the First to Thirteenth CZ Singh Representations;

(b) any representation substantially the same as any of the First to Thirteenth CZ Singh Representations;

(c) each of the First to Thirteenth CZ Re.Group Representations;

any representation substantially the same as any of the First to Thirteenth CZ Re.Group Representations.

7. The costs of this interlocutory application be costs in the cause.

8. Liberty to apply on the giving of 48 hours’ notice.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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