Texas Way P/L v Thanh Hung Video (Aust) P/L

[1992] FCA 790

JUDGMENT L .a

IN THE FEDERAL COURT OF AUSTRALIA

) )

VICTORIA DISTRICT REGISTRY

)	No. 353 of 1992
)	No. 373 of 1992

GENERAL DIVISION

)

B E T W E E N : 

TEXAS WAY PTY LTD. TINOS PTY LTD. TVB

INTERNATIOW LTD. TELEVISIONS BROADCASTING LTD

and TVB INTERNATIONAL IOVERSEAS) LTD

Applicants

- and -

THANH HUNG VIDEO IAUST) PTY LTD

and DUOC HUNG VIDEO PTY LTD

JUDGE :	Heerey J
DATE:	21 October 1992

,

m: Melbourne

EX TEMPORE REASONS FOR JUDGMENT

This is a case in which I should particularly bear in mind and stress that the court is quite unable to make any judgment on the competing legal and factual claims of the parties. It should be clearly understood that the court is only concerned with attaining the most practical solution which can cause the minimum amount of loss to the parties until their substantive rights are determined at trial. Of course it goes without saying that any such arrangement will be necessarily less than perfect because the perfect arrangement would depend on a resolution of the parties' rights after a hearing involving cross-examination and careful consideration, and that cannot happen until trial.

In approaching this case I am influenced by the consideration

that there has been a worklng relationship between the parties extending back over some years, even though of perhaps a very informal kind. And in the case of the second respondent it appears to be conceded that that relationship in broad terms can continue, although as I shall point out there is a dispute as to whether that should be only until the end of January or until trial.

The relationship between the applicants and both respondents is a commercial one involving the provision of tapes which are to be hired in a retail video hire business. It is not a relationship in which the personal qualities of either side in terms of trust and the like play any significant part. It is the sort of relationship where parties can and often do deal with each other even if they do not have very much personal regard or respect for one another.

I am also influenced by the fact that the present upheaval seems to have coincided with the assertion by the applicants

producer of films in Hong Kong. This seems to have first	of a claim to prevent the respondents dealing with a rival
emerged in about May of this year. I agree with Mr Hayes that there does seem, on a very limited and necessarily preliminary basis, an arguable case that the purpose of the applicants would involve a contravention of s.47 of the Trade Practices
1974. And indeed much of the applicants' own material seems to disclose a concern with a perceived need to discipl~ne the market in Chinese video hire, which may be
understandable commercially but I am not at all sure that it is a factor that weighs in favour of the applicants. In fact I think, insofar as it raises the distinct possibility of a breach of s.47, it weighs against disposing of the interlocutory issues in the way that the applicants contend should happen.
As I have said, broadly speaking, a reasonable modus vivendi seems capable of achieving in relation to the second respondent. The difference between the case of that respondent and the first respondent is that there is a very live factual dispute as to whether the first respondent made the licence payment which fell due in early July. There are certainly legitimate grounds for criticising the inherent improbability of the first respondent's case on this issue. But the first respondent has now undertaken through counsel to lodge in a bank account in the name of the solicitors for both parties the sum of $33,000, which is the sum in question, pending the outcome of this litigation. To my mind that
case of the first respondent and the second respondent. As I substantially removes the distinguishing factor between the
say, the applicants do not have to like the gentleman who controls the first respondent to be able to do business with hlm.
There was also the factor that the respondents do make out to my mind a case of substantial loss should no injunctive relief be granted and they succeed at tidal. The loss of transient
regular custom of the sort this kind of business generates would be very hard to quantify. And although the applicants have indicated that they would be able to provide bank guarantees to overcome any perceived lack of substance arising from the fact that some of them are companies incorporated outside Australia, I think the difficulty of quantifying the respondents' loss does, on thls issue, tell in favour of their argument on the balance of convenience.
The order that I have in mind is in the terms of Spender J's order but extending until the trial of the action. I have given weight to what was said on behalf of the applicants and in particular to the circumstances that their own rights as between themselves and the owner of the copyright expire about the end of January. But I do have regard to the fact that the relationship seems to have worked reasonably smoothly in the past and there is no reason that I can see on a commercial basis why it should not continue beyond January, at any rate for the limited period of time that would expire between the end of January and the time a trial of the action could commence, which I would expect would probably be the following
month or not much later. And any real difficulties on this score I think can be overcome by reserving liberty to apply.
As to the Anton Piller order I think, because of the unsatisfactory experience of the attempted enforcement of the order that has been made, there ought to be an order in limited terms which will not extend to taking away any goods that are on the premises and will really be of the nature of an auditing or stocktaking exercise. I think the adverse effect that rumour within the Chinese community might have on the respondents' businesses can be minimised by making a suitable arrangement for the time and place when this is to occur.
The affidavit that Ryan J ordered I think should also be ordered, but on the basis that it will simply refer to videos which are out on h u e at the time of the inspection. So I will make orders in those general terms. I propose to leave the bench and allow the parties to consider more precise formulation of orders consistent with the reasons that I have just announced and also to formulate directions which I think should accommodate the following features.
There should be joinder. Mrs Crennan's clients I think should be the applicants in the consolidated proceedings and should have the carriage of them. There should be arrangements for pleadings, and I think the trial should be on affidavit. Much of the voluminous affidavit material already filed would be
inadmissible on a trial of the action and also in some instances proceeds on misapprehension as to what the real issues are. I think therefore that the directions should make provision for the affidavits to start afresh, as it were. But equally there are some affidavits such as the affidavits about the purchase of videos by retail customers which would be perfectly acceptable at a trial of the action and it would be sufficient if the parties simply notified the opposing party that a particular affidavit would be relied on at the trial of the action. I would not require the parties to re-swear those
affidavits.
As to costs, I think that the court ought to strongly enforce the notion that interlocutory applications are not be treated as a preliminary dry-run for the trial of actions and that it is only in the most exceptional circumstances and for a very limited purpose that cross-examination will be permitted. I think when notice is given for the party to attend and that party is known to be interstate, the party giving the notice really has got to accept the risk of not having leave granted. So I will reserve the costs but I will order the respondents to pay the travelling costs of Mr Fung from Sydney.

I certify that this and the preceding (5) five pages are a true copy of the reasons for judgment of his Honour Mr Justice Heerey.

Counsel for the applicants:	Mrs S Crennan QC with Mr B J Hess
Solicitors for the applicants:	Middletons Moore and Bevins
Counsel for the respondents:	Mr P R Hayes QC with Mr I R Jones

Solicitors for the respondents: Karamountzos and Kiatos