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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- Case
- [2016] FCA 1485
- Decision Date
CaseChat Overview and Summary
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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