VN International Video P/L v West End HK TVB Video

[1994] FCA 974

JUDGMENT No. ,d , '777 9% .-

CATCHWQBPS

INTERLOCUTORY INJUNCI'IONS - malung coples of vldeo suppl~ed under a Licence but which had termmated - balance of convenience - whether damage properly compensable

ANTON PILLER ORDER - manner of execution, interpretation of order

VN Int-tional	Video Ptv l	v West End &TVB	Video and Yen Phi N	m
QG143 of 1994

-1 J. Brisbane. 2 December 1994

14 DEC 1994

JN THE FEDFRAI. COURT OF A U S & U A

ISTRICT REGISTRY

DIVISION

VN INTFRNHIONAL VIDEO

IzlxLCQ

Am WFST FND HK TVB VIDEO

First Reswndent

Second Resoondem

AI!m -

Third R e s m d a u

:	-	Kiefel J.
W:	2 December 1994
WHERE:	Brisbane

1. The application be d~smissed.

2. The applicant pay each of the respondents' costs of and incidental to today to be taxed.

3. The costs of 22 November 1994 be the parties' costs ~n the cause.

W E	Settlement and entry of orders is dealt with in Order 36 of the F e d e d
Court Ruleg

IN THE FEDERAL COURT OF AUSTRALIA

No. OG143 of 1994

OUFENSLAND DISTRICT REGISTRY

SiENERAL DIVISION

BETWF.EN:	VN INTERNATIONAL VIDEO
J!lXlm

First

Second R~suondent

LAN THI NGUYEN

Third Reswndea

(=ORAM:	Kiefel J.
R&E:	2 December 1994
J!L&zE:	Brisbane
Th~s matter returns to me today for a continuation of injunctions originally

granted on an ex parte application to the applicant and for an extension of those

injunctions. The injunctions restrain the respondents from importing or making copies of video tapes whlch had been supplied to them under a licence or other agreement but which had been terminated, and wth respect to any videos which they have apparently

continued to receive after termination of any such agreement. The extension relates to

their right to hue out copies which they already have. There is a real question as to

whether they do have the rlght to contlnue to do so, and that 1s not in dispute.

L

The questlon then turns on matter of the balance of convenience, and, in

thls particular case, upon an effect which I cons~der has been added to the equatlon by the manner m which the Anton Pillar order, granted to the appl~cant, was executed. The other matter whch influences my new that no extension of the injunct~ons ought to be granted is an aspect of delay, but this is not a strong feature. Counsel for the respondents

have offered undertakings, as h s instructing sohator has previously done by

correspondence, on behalf of each of the respondents that they will not copy any videos and that they mll not hire out those vldeos which were released after the dates upon whch the agreements were terminated.

With respect to balance of convenience, then, on the hlring out of those

videos which were obtamed dunng the currency of the agreement, the effect on the applicant is said to be that it would have difficulty in entering into or interesting others in Licence agreements mth it, or that the price at which its videos might be hired out will be

lessened, smce it is obliged to compete with the respondents at the lower rate they

charge. No overall effect upon its financial position is however referred to and it does not seem that it has been wholly d~sabled from interestmg other video shops in Brisbane from entering into some such agreements.

The respondents say that they have suffered damage to date by r e w n of the injunctions previously granted and point to some loss of income. Mr Crowc of counsel who appeared for the applicant correctly pointed out that the effect for the future is not necessarily to be taken as that shown to have resulted from the previous

injunctions, slnce we are concerned here only mth add~t~onal injunctions. The effect on

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the respondents, which I consider IS of some concern, is not just potential loss of income, which overall may not be great, if it is assessed just by reference to those vldeos obtained from the apphcant and which they would be unable to hire out. The greater impact,

whlch u deposed to in the material, is that it would, by reason of any order made, be obvious to people m the Vietnamese community that they have not been allowed to hire them out. The effect on their businesses m such a closed community could be considerable, and I am not satisfied that damages would really be adequate to remedy the loss of reputation which mlght be suffered m respect of each of their small businesses in

the period of some months at least before the matter comes to trial. The position in whlch they are placed has also been affected, and I consider likely affected, by the timing of and manner in which the Anton Plllar order was executed.

I cons~der that it was executed m breach of its terms namely that, with

respect to each of the three premises concerned, it was not effected withln the business hours specified. The persons concerned in the execution of the order are the principal

solicitor for the applicant in Melbourne and a local agent who, I am told, haw placed a

particular construction upon the terms of the order. It u one which I do not consider u

reasonably open. Certainly in the circumstance of an Anton Pillar order, in any event, I do not cons~der that it a right for solicitors to attempt to place an interpretation on the

order which, incidentally, favours their client. If there is any doubt about the tern of such an order, it ought to be resolved pnor to its execution. I am not satisfied that such a doubt was open here and I propose to take up with counsel for the applicant later a

mode by whlch the solicltors might explain the matter to the Court. For present purposes, the effect of an attendance later in the evening mth police officers, and

4

apparently in circumstances where a person or agent connected with the applicant was observed to be talking to customers outs~de whllst th~s process was belng undertaken, wlth no attempt on the part of the solicitors to dlssuade hlm from that course, I think has probably served to make worse an already difficult situation.

In this background, I consider that the respondents are more likely to suffer

greater damage than the applicants, and as I have said, damage which may not be

properly compensable. For these reasons, I would not propose to grant any extension or

any further order beyond the undertakings to be provided by the applicants. There will

be the question of costs, gentlemen.

In terms of the unde- noted, they will be in tern of the draft

document, which w1I1 be initialled by me and placed with the papers. With respect to the

issue of costs, I order that the applicant pay each of the respondents' costs of and

incidental to the hearing today, but that the costs of the hearing on 22 November 1994 be

the parties costs in the cause.

I certify that this and the preceding three pages are a true

copy of the reasons for judgment herein of the Honourable

Justice &efel.

Date: 2 December 1994

Associate

Chunsel for the applsant:	Mr A Crowe
Solicitors for the applicant:	Jonathan Wong
&unsel for the respondents:	Mr P Hastie
Solicitors for the respondents:	Fisher Rob~nson

Date of Heanng:

22 November 1994, 2 December

1994