Sky Channel Pty Ltd v Yahmoc Pty Ltd

[2003] FCA 401

FEDERAL COURT OF AUSTRALIA

Sky Channel Pty Ltd v Yahmoc Pty Ltd [2003] FCA 401

SKY CHANNEL PTY LTD AND ANOR v YAHMOC PTY LTD AND ANOR
N 451 of 2003

ALLSOP J
9 APRIL 2003
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N451 of 2003

BETWEEN:

SKY CHANNEL PTY LIMITED
FIRST APPLICANT

AUSTAR ENTERTAINMENT PTY LTD
SECOND APPLICANT

AND:

YAHMOC PTY LTD
FIRST RESPONDENT

PETER WALLACE BRAZIER
SECOND RESPONDENT

FURTHER PARTIES LISTED IN SCHEDULE ONE TO THE APPLICATION

JUDGE:

ALLSOP J

DATE OF ORDER:

9 APRIL 2003

WHERE MADE:

SYDNEY

Upon the applicants, through their counsel, undertaking to the Court:

(a)to submit to such order if any as the Court may consider to be just for the payment of compensation, to be assessed by the Court or as it may direct, to any person, whether or not a party, adversely affected by the operation of the orders made on 9 April 2003; and

(b)to pay the compensation referred to in (a) to the person there referred to

And noting the undertaking to the court of Ms Kate Harrison, solicitor for the applicants,

THE COURT:

(1)makes orders in accordance with the short minutes of order containing a notice to the respondents which have been variously amended and initialled and dated by Allsop J on each page.

(2)Makes orders under section 50 of the Federal Court of Australia Act, that the transcript of today's proceedings including the transcript of the judgment of Allsop J not be distributed to any party without the leave of the Court at any time prior to 6pm on Friday 11 April 2003.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N451 of 2003

BETWEEN:

SKY CHANNEL PTY LIMITED
FIRST APPLICANT

AUSTAR ENTERTAINMENT PTY LTD
SECOND APPLICANT

AND:

YAHMOC PTY LTD
FIRST RESPONDENT

PETER WALLACE BRAZIER
SECOND RESPONDENT

FURTHER PARTIES LISTED IN SCHEDULE ONE TO THE APPLICATION

JUDGE:	ALLSOP J
DATE:	9 APRIL 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. I have a matter before me in which relief in the nature of an Anton Piller order is sought based primarily, if not wholly, upon a breach of s 135ANA of the Copyright Act 1968 (Cth) (the Act). This is part of a new Division of the Act.

2. I am satisfied on the evidence as it now stands that there is a strong case made of a breach of s 135ANA in respect of the respondent's premises, there apparently being a lack of authorisation for use of a decoding device contrary to the section. I am satisfied that the matters set out in s 135ANA have been, at least on a prima facie base, comfortably satisfied. 

3. The apparent breaches involved the use of what might be termed, in common parlance, a smart card, in a decoding device, which is a set top box.  All the equipment for the reception of wireless broadcasts from the applicants, that is, dish, cables, television, and set top box are generic products and can be purchased perfectly lawfully and employed perfectly lawfully.  However, on the evidence, all the signals transmitted by the applicants for their commercial pay TV channels are encoded.  None of the earlier mentioned equipment would be of any use in picking up this encoded wireless signal unless there was a device which effectively decodes the encryption in the signal.

4. There is evidence from an inquiry agent that at the Commercial Hotel in Hay, the public, in commercial circumstances, have been viewing pay TV broadcasts of both applicants.  The respondents are not customers known to the applicants.  The only inference currently available on the evidence is that there is involved the likely use of some form of smart card to decode the wireless signal of the applicants for commercial use in the Commercial Hotel.

5. The evidence discloses that the respondents are subscribers to no pay television channel of the applicants whether domestic or commercial.  They appear, in commercial circumstances, to be able to broadcast the domestic pay television channel broadcast by the applicant, and the evidence also discloses that there does not appear to be an adjacent or nearby taking of either the domestic or commercial signal at a location which might be conveniently led through another cable to another part of the premises.  The inference which arises on the current evidence is that the signal is able to be broadcast by means of a current smart card.

6. In these circumstances I am content to make the orders which I have initialled and to which I will come in a moment. 

7. I have discussed with counsel various aspects of the orders and made various changes.  Though the ordering of Anton Piller orders is an extreme use of the Court’s inherent power, I am satisfied in this case that it is appropriate.  There is no particular indication that the proprietors of the Commercial Hotel or the respondents, if they be different, will act in any way improperly, save and except that there is cogent evidence, at least on a prima facie basis, that they are using the applicants’ signal without commercial fee, something which on the evidence and taking into current judicial notice of in the ordinary course, would be unlikely to have occurred without some understanding by the parties of the inappropriateness of that conduct in commercial terms.

8. In those circumstances, and in particular in the circumstance that the ability to do this is effectuated by a very small item, easily hidden and easily removed from the set top box, I think it appropriate in all the circumstances to make the Anton Piller orders which have been discussed with counsel.

9. For those reasons I propose to make the orders to which I now turn.

10. Upon the applicants, through their counsel, undertaking to the court to submit to such order if any as the court may consider to be just for the payment, compensation to be assessed by the court or as it may direct to any person whether or not a party adversely affected by the operation of the orders made on 9 April 2003 and (b) to pay the compensation referred to in (a) to the person there referred to, and noting the undertaking to the court of Ms Kate Harrison, solicitor for the applicants:

    1.I make orders in accordance with the short minutes of order containing a notice to the respondents which have been variously amended and initialled and dated by me on each page.

    2.I make an order under section 50 of the Federal Court of Australia Act, that the transcript of today's proceedings including the transcript of my judgment not be distributed to any party without the leave of the Court at any time prior to 6pm on Friday 11 April 2003.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop J.

Associate:

Dated:             2 May 2003

Counsel for the Applicant:	R Cobden
Solicitor for the Applicant:	Gilbert & Tobin
No appearance by the first or second Respondents.
Date of Hearing:	9 April 2003
Date of Judgment:	9 April 2003