Television Broadcasts Ltd v Choi Wan Cheung T/as ABM Video

[1996] FCA 1173

IN THE FEDERAL COURT OF AUSTRALIA  )
NEW SOUTH WALES DISTRICT REGISTRY  )
GENERAL DIVISION  )           No. NG 849 of 1996

BETWEEN:TELEVISION BROADCASTS LIMITED & ORS

Applicant

AND:CHOI WAN CHEUNG T/AS ABM VIDEO & ANOR

Respondent

CORAM:Lehane J

PLACE:Sydney

DATE:13 December 1996

EXTEMPORE REASONS FOR JUDGMENT

LEHANE J:   Given the discussion which has occurred I shall deal with this matter briefly.  The applicants move for orders for the filing and service of affidavits setting out the number and location of cassettes and other media and of details of transactions by which that material has been hired out to members of the public.  Those orders are sought against each respondent as is, although unusually upon notice, an order in what is substantially the conventional Anton Piller form.

The evidence strongly suggests that the second respondent has ceased trading.  In those circumstances I have already expressed a view that it is unnecessary, at least at this stage, and therefore inappropriate for an Anton Piller order to be made though in my view it is appropriate that an order in the form of that sought in paragraph 2 of the notice of motion be made.  In the case of the first respondent, the evidence read upon the motion indicates
no particulars of a substantive defence to the applicant's claims.  The evidence does, however, go to the size of the business conducted by the first respondent - which is obviously very small - and to the cost and hardship likely to be caused by the execution of an Anton Piller order.  In my view it is inappropriate, on that evidence to do more than make the order in relation to the first respondent sought in paragraph 2 of the notice of motion.  That order is made, as to both respondents, on the footing that the undertakings to the court already given will be continued.

The question then arises whether the motion for Anton Piller relief should simply be dismissed or whether, as counsel for the applicants suggests, it should be stood over pending the date set for the filing and service of affidavits in accordance with order 2.

In my view the appropriate course is, in the present circumstances, that which the applicants counsel has suggested.  However, I think it is appropriate to indicate that if the affidavit material filed and served appears to be frank and complete and if there is no evidence of further infringing activities it is very unlikely that the court would consider it appropriate to make an order of an Anton Piller kind.  The appropriate order as to costs  is that they be reserved.

The outcome is that I make the following orders.  First, in relation to each respondent, I make the order claimed in paragraph 2 of the applicants' notice of motion dated 5 December 1996, but varied so that the date not later than which the affidavits are to be
filed and served is Friday 10 January 1987; secondly, I stand over to 14 February 1997 the question of the making of any order as sought in paragraph 3 of the notice of motion.

Order 5 of the consent orders is extended to 10 February 1997.  I note the continuation of the undertakings set out in paragraph 8 of those consent orders.

I grant liberty to apply on 7 days' notice.  The costs of the motion are reserved.

I certify that this and the preceding 2 pages are a true copy of the Reasons for Judgment of the Honourable Justice Lehane.

Associate:

Dated:  13 December 1996

Heard:  13 December 1996

Place:  Sydney

Decision:  13 December 1996

Appearances:  Mr K P Smark of counsel instructed by Simpsons Solicitors appeared for the applicant.

Mr L Boccabella of counsel instructed by Conroy & Associates appeared for the respondent.