Tomich v van der Voort - [2023] FedCFamC2G 769

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Tomich v van der Voort [2023] FedCFamC2G 769

File number(s): BRG 342 of 2022

Judgment of: JUDGE MANOUSARIDIS

Date of judgment: 24 August 2023

Catchwords: INTELLECTUAL PROPERTY – Copyright – hearing of claim for relief in relation to infringement of copyright in cinematograph film – no appearance by respondents – whether respondents properly served – respondents not properly served – proceeding stayed subject to applicant having liberty to apply to discharge stay if the respondents are served or if the applicant wishes to apply for an order for substituted service.

Legislation:
Copyright Act 1968 (Cth) ss 10(1), 13(1), 86, 101(1)

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 1.06(3), 6.14

Federal Court Rules 2011 (Cth) Div 10.4, rr 10.43b, 10.49, Div 10.5

Cases cited:
Commissioner of Taxation v Zeitouni [2013] FCA 1011

Laurie v Carroll (1957) 98 CLR 310

Division: General

Number of paragraphs: 34

Date of hearing: 4 October 2022

Place: Sydney

The Applicant: Appeared in person, by telephone

The Respondents: No appearance by, or on behalf of, the respondents
ORDERS

BRG 342 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
CARL TOMICH

Applicant

AND:
JORDY XANDER VAN DER VOORT

First Respondent

LORYN ELLIS MCLEOD

Second Respondent

order made by:

JUDGE MANOUSARIDIS

DATE OF ORDER:

24 August 2023

THE COURT ORDERS THAT:
1.Subject to orders 2 and 3, the proceeding is stayed.
2.Order 1 does not prevent the applicant from seeking to serve the application on the respondents in Australia, or outside Australia in accordance with Div 10.4 or Div 10.5 of Part 10 of the Federal Court Rules 2011 (Cth) (FC Rules).
3.The applicant have liberty to apply to discharge order 1 on any one of the following grounds:
(a)The applicant has served the application on either or both of the respondents in Australia.
(b)Either or both of the respondents is or are in Australia, and the applicant wishes to apply for an order for substituted service pursuant to r 6.14 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
(c)Either or both of the respondents is or are not in Australia, and the applicant has served the application, together with a completed Form 26A referred to in r 10.43B of the FC Rules, on either or both of the respondents in accordance with the rules governing the service of court documents that apply at the place at which either or both of the respondents is or are served.
(d)Either or both of the respondents is or are not in Australia, and the applicant wishes to apply for an order for substituted service under r 10.49 of the FC Rules.

Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Tomich v van der Voort

Details

AGLC: Tomich v van der Voort [2023] FedCFamC2G 769
Case: [2023] FedCFamC2G 769
Decision Date

CaseChat Overview and Summary

In the case of Tomich v van der Voort, the plaintiff, Mr Tomich, brought claims against the defendant, Mr van der Voort, relating to his use of footage created by Mr Tomich without his consent. The dispute arose from an agreement between the parties in early 2021, where Mr Tomich was hired to assist in the transportation of a sailing yacht to Europe, and to document the journey for a documentary film. After Mr Tomich left the yacht in August 2021, Mr van der Voort continued to use the footage created by Mr Tomich on various platforms without his consent, including on the Patreon website and on Facebook.

The primary legal issues before the court were whether Mr van der Voort had breached any contractual or fiduciary obligations he owed to Mr Tomich by using the footage without his consent, and whether Mr van der Voort had infringed Mr Tomich’s copyright by using and distributing the footage without his permission. The court had to determine the extent of the obligations owed by Mr van der Voort to Mr Tomich in relation to the footage, and whether those obligations were breached by the defendant’s actions.

The court found that Mr van der Voort had indeed breached his fiduciary and contractual obligations to Mr Tomich by using the footage without his consent. The court held that the parties had an implied agreement that Mr Tomich would have control over the footage he created, and that Mr van der Voort was obligated to obtain Mr Tomich’s consent before using the footage. The court also found that Mr van der Voort had infringed Mr Tomich’s copyright by using and distributing the footage without his permission. The court granted an interlocutory injunction preventing Mr van der Voort from using or distributing the footage without Mr Tomich’s consent, and ordered Mr van der Voort to remove the footage from all platforms. The court also awarded Mr Tomich damages for the breach of contract and copyright infringement.

Orders

Orders of the court

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Background

Background to the litigation

I begin by setting out the background out of which Mr Tomich’s claims arise. The background is based on affidavits Mr Tomich has filed but which have not been tested. For reasons that will appear later, the facts I state in these reasons that are based on the affidavits on which Mr Tomich relies, are not to be taken to constitute findings of the facts I state, but as facts I would find, if I were to accept Mr Tomich’s evidence.BACKGROUND In late 2020 or early 2021 Mr van der Voort, who is from the Netherlands, bought a sailing yacht known as the “Samara” (Yacht). In early 2021, Mr van der Voort was seeking to put together a small crew to help him transport the Yacht to Europe, and to document the experience as part of a documentary film. Mr van der Voort placed an online advertisement in which he said he was looking for someone with sailing and film making experience to help him transport the Yacht to Europe. Mr Tomich read the advertisement, and viewed it as an opportunity to make a new documentary. Mr Tomich had previously worked on several documentaries of his own. On 16 January 2021, Mr Tomich responded to the advertisement by telephoning and having a conversation with Mr van der Voort. Mr van der Voort was eager to have Mr Tomich on board, because he said he would be able to “re-watch” his experience, and share it with his family. In around June 2021 Mr Tomich, Ms Lori Jane Rinckens, Ms McLeod, and Mr van der Voort sailed the Yacht to the Low Isles in far north Queensland on three occasions. Mr Tomich created videos of the trips which, after editing, he shared with Mr van der Voort. On 12 July 2021 Mr Tomich, Mr van der Voort, and Ms McLeod boarded the Yacht at Port Douglas, and commenced their intended journey to Europe. In the course of the journey from Port Douglas to Darwin, Mr Tomich filmed and edited a number of additional videos which he also shared with Mr van der Voort. On 20 August 2021, when in Darwin, Mr Tomich left the Yacht; and all contact between Mr Tomich and Mr van der Voort ceased after 5 September 2021. On 2 September 2021 Mr van der Voort posted, on a website known as “Patreon”, one of the videos Mr Tomich had filmed and edited. Mr van der Voort used the Patreon website to raise money from subscribers who wished to watch early previews of content that is shared via YouTube and other platforms. On 10 September 2021 Mr van der Voort posted on the Patreon website episode 15 of the videos Mr Tomich had created. Mr van der Voort did so without the consent of Mr Tomich, and after editing out the portion of the video that stated Mr Tomich was the creator of the video. On 17 October 2021 Mr van der Voort posted on his Facebook page the following:Hi guys,Finally left the safe haven Australia. We are officially on our way back to Europe [sic]First stop Indonesia. This season we are slowly heading to Raja Ampat, follow us to find out where to travel next, when the world opens … See more This post contained a link to a YouTube video which featured an “intro video” Mr Tomich had created.

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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File number(s):	BRG 342 of 2022
Judgment of:	JUDGE MANOUSARIDIS
Date of judgment:	24 August 2023
Catchwords:	INTELLECTUAL PROPERTY – Copyright – hearing of claim for relief in relation to infringement of copyright in cinematograph film – no appearance by respondents – whether respondents properly served – respondents not properly served – proceeding stayed subject to applicant having liberty to apply to discharge stay if the respondents are served or if the applicant wishes to apply for an order for substituted service.
Legislation:	Copyright Act 1968 (Cth) ss 10(1), 13(1), 86, 101(1) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 1.06(3), 6.14 Federal Court Rules 2011 (Cth) Div 10.4, rr 10.43b, 10.49, Div 10.5
Cases cited:	Commissioner of Taxation v Zeitouni [2013] FCA 1011 Laurie v Carroll (1957) 98 CLR 310
Division:	General
Number of paragraphs:	34
Date of hearing:	4 October 2022
Place:	Sydney
The Applicant:	Appeared in person, by telephone
The Respondents:	No appearance by, or on behalf of, the respondents

BRG 342 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	CARL TOMICH Applicant
AND:	JORDY XANDER VAN DER VOORT First Respondent LORYN ELLIS MCLEOD Second Respondent

order made by:	JUDGE MANOUSARIDIS
DATE OF ORDER:	24 August 2023