FEDERAL CIRCUIT COURT OF AUSTRALIA
| TOP PLUS PTY LTD & ANOR v MUSE ENTERTAINMENT PTY LTD & ORS | [2013] FCCA 379 |
| Catchwords: PRACTICE & PROCEDURE – Respondents failed to appear – findings and orders made pursuant to FCC Rule 13.03B(2)(c). |
| Legislation: Federal Circuit Court Rules 2001 |
| First Applicant: | TOP PLUS PTY LTD |
| Second Applicant: | K-BOX PTY LTD ACN 105 220 157 |
| First Respondent: | MUSE ENTERTAINMENT PTY LTD |
| Second Respondent: | CHARLIE JI |
| Third Respondent: | GOLD TYPHOON ENTERTAINMENT LIMITED |
| Fourth Respondent: | EAST ASIA MUSIC (HOLDINGS) LIMITED |
| Fifth Respondent: | EMPEROR ENTERTAINMENT (HONG KONG) LIMITED |
| Sixth Respondent: | UNIVERSAL MUSIC LIMITED |
| Seventh Respondent: | EAST ASIA RECORD PRODUCTION COMPANY LIMITED |
| Eighth Respondent: | HUMMINGBIRD MUSIC LIMITED |
| File Number: | ADG 216 of 2012 |
| Judgment of: | Judge Simpson |
| Hearing date: | 20 May 2013 |
| Date of Last Submission: | 20 May 2013 |
| Delivered at: | Adelaide |
| Delivered on: | 20 May 2013 (ex-tempore) |
| Date of Order: | 18 June 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr Sadler |
| Solicitors for the Applicant: | Thomsons Lawyers |
| Respondents: | Mr Starke, out of courtesy only |
Pursuant to rules 13.03A(2)(b)(iii) and 13.03B(2)(c) of the Federal Circuit Court Rules 2001 (Cth):
THE COURT MAKES DECLARATIONS THAT:
The First Respondent has infringed the copyright in cinematograph films contained in the Gold Typhoon Entertainment Limited ('GTE') works (which are set out at Tab 1 of the List of Works attached to the Statement of Claim filed in this action on 26 September 2012) by:
(a)making a copy of;
(b)causing to be seen in public;
(c)communicating to the public,
the whole or a substantial part of those cinematograph films, without the licence of the First Applicant or the Second…
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- Case
- [2013] FCCA 379
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the applicants were entitled to default judgment against the respondents, who failed to appear at the hearing. This involved determining if the applicants had established a prima facie case for copyright infringement and whether the court had the power to make findings and orders in the absence of the respondents, pursuant to Rule 13.03B(2)(c) of the Federal Circuit Court Rules 2001 (Cth).
Judge Simpson found that the applicants had presented sufficient evidence to establish a prima facie case of copyright infringement. Applying Rule 13.03B(2)(c), which permits the court to make findings and orders in default of appearance, the court granted judgment in favour of the applicants. The court awarded damages of $95,299.56 pursuant to section 115(2) of the Copyright Act 1968 (Cth), costs of $8,605.00, and interest of $4,422.94.
Orders
Orders of the court
9. The Applicants be granted judgment in default of appearance against the First and Second Respondents and that judgment be entered accordingly.
10.The Applicants be awarded damages in the amount of $95,299.56 pursuant to s.115(2) of the Act against the First and Second Respondents.
11. The Applicants be awarded costs in the amount of $8,605.00 against the First and Second Respondents.
12. Interest to the date of judgment pursuant to s.76 of the Federal Circuit Court Act 1999 (Cth) to be fixed in the amount of $4,422.94.
Background
Background to the litigation
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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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