Top Plus Pty Ltd v Muse Entertainment Pty Ltd

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FEDERAL CIRCUIT COURT OF AUSTRALIA

TOP PLUS PTY LTD & ANOR v MUSE ENTERTAINMENT PTY LTD & ORS [2013] FCCA 379

Catchwords:
COPYRIGHT – Cinematographic film – infringement of copyright in karaoke videos over which applicant claims an exclusive licence – default orders made.

PRACTICE & PROCEDURE – Respondents failed to appear – findings and orders made pursuant to FCC Rule 13.03B(2)(c).

Legislation:  
Copyright Act 1968, ss.115 & 116

Federal Circuit Court Rules 2001
Civil Dispute Resolution Act 2011 s.7

Australian Competition and Consumer Commission (ACCC) v Dataline.Net.Au Proprietary Limited (2006) 236 ALR 665
Australian Communications and Media Authority v Mobilgate Limited(No 2) [2009] FCA 887
Yeo v Damos Earthmoving Proprietary Limited, Re Beachwood Developments Proprietary Limited (in liquidation) [2011] FCA 1129
Arthur v Vaupotic Investments Proprietary Limited [2005] FCA 433
Australian Competition and Consumer Commission v 1cellnet LCC [2005] FCA 856
Luna Park Sydney Pty Limited (ACN 102 907 184) v Bose [2006] FCA 94
CNIP Pty Limited v Chan & Naylor Norwest Pty Limited(No 2) [2011] FCA 1170
Speedo Holdings B.V. v Evans(No 2) [2011] FCA 1227
Macquarie Bank Limited (ACN 008 583 542)v Seagle [2008] FCA 1417
Macquarie Bank Limited v Seagle (2005) 146 FCR 400
Deppro Pty Limited v Daly [2006] FCA 1727
Jianshe Southern Pty Limited (ACN 007 031 905) v Turnbull Cooktown Pty Limited (ACN 069 894 275) (No 2) [2007] FCA 903
Acohs Pty Limited v Ucorp Pty Limited [2010] FCA 577
Clayton v Thomas C Denton Pty Limited (1972) VR 46
Bell v Steele(No 2) [2012] FCA 62
Bank of Kuwait and the Middle East v Ship MV “Mawashi Al Gasseem” (No 2) (2007) 240 ALR 120
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:

  1. 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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Details
Case
[2013] FCCA 379
Decision Date

CaseChat Overview and Summary

Top Plus Pty Ltd and others (the applicants) sought judgment against Muse Entertainment Pty Ltd and another (the respondents) for alleged infringement of copyright in cinematographic films, specifically karaoke videos. The applicants claimed to hold an exclusive licence for these videos. The matter came before Judge Simpson of the Federal Circuit Court of Australia.

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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