Sky Channel Pty Limited v Lawrence Keith Wall

[2003] FCA 613

FEDERAL COURT OF AUSTRALIA

Sky Channel Pty Limited v Lawrence Keith Wall [2003] FCA 613

SKY CHANNEL PTY LIMITED AND ANOR v LAWRENCE KEITH WALL AND ANOR
N 478 of 2003

ALLSOP J
17 JUNE 2003
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 478 of 2003

BETWEEN:

SKY CHANNEL PTY LIMITED
FIRST APPLICANT

AUSTAR ENTERTAINMENT PTY LIMITED
SECOND APPLICANT

AND:

LAWRENCE KEITH WALL AND OTHERS
RESPONDENTS

JUDGE:	ALLSOP J
DATE:	17 JUNE 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. In this matter the applicants seek, by notice of motion, joinder of the three parties being those listed in the notice of motion which I have dated today and granted leave to file in Court.  Those parties are E.B.& D.L. Evans Pty Limited, Bruce Edward Evans and Deborah Lea Evans.  These people and this company in effect run, or, one or more of them run, the National Hotel in Stawell, Victoria.

2. The evidence read before me today satisfies me to a reasonable level of satisfaction either that a contract with the applicants in relation to the provision of pay television services to an address other than the hotel may well have been breached or the provisions of Part 5AA of the Copyright Act 1968 (Cth) have been infringed. Anton Piller relief is not claimed. That is so because of the alternative inferences that are available as to how the hotel is obtaining a signal for which signal there is no apparent contractual entitlement.

3. What is sought is the delivery up to the agent of the applicants of the set boxes and smart cards owned or in the custody or possession of the putative respondents.  I am not prepared to make that order so widely, but I am prepared to make an order for the delivery up to a nominated agent, being a local solicitor, of the set top boxes and smart cards which are in the hotel and in the premises identified in the evidence where there is, or has been, a legitimate arrangement for the reception of the signal.

4. While the orders are positive and sought ex parte I am persuaded by the evidence that they are appropriate.  The orders include the entitlement of the respondents to appear by telephone on the return of the notice of motion, however, if the respondents are of the view that they wish to move to discharge these orders or otherwise seek substantive relief on that Friday, they would be well advised to brief legal practitioners to appear on their behalf and to attend in Court, as the disposition of a contested notice of motion or contested application using the telephone is never easy to effect, certainly with expedition.

5. For the above reasons I will make orders in chambers in the respects that I have indicated to counsel and those respects should add an order that the applicants cause copies of these reasons to be sent by registered mail to the respondents at the hotel, such registered mail to be pre-paid post, such pre-paid post to be despatched no later than this Friday at 3.00 pm.

6. While I have granted leave to join these respondents in the existing action, it is appropriate that at a convenient time this joinder (as opposed to the institution of separate proceedings) be reviewed.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.

Associate:

Dated:             20 June 2003

Counsel for the Applicants:	Mr R Cobden
Solicitor for the Applicants:	Gilbert and Tobin
There was no appearance by, or on behalf of, the respondents
Date of Hearing:	17 June 2003
Date of Judgment:	17 June 2003