WorldAudio v GB Radio - [2003] NSWSC 1023

CITATION: WorldAudio & Anor v GB Radio [2003] NSWSC 1023

HEARING DATE(S): 30 October 2003

JUDGMENT DATE:
7 November 2003

JUDGMENT OF: McDougall J at 1

DECISION: See paras [40] to [43] of judgment

CATCHWORDS: PRACTICE AND PROCEDURE - form of orders to give effect to judgment

PARTIES :
WorldAudio Ltd (Plaintiff 1)
WorldAudio Communications Pty Ltd (Plaintiff 2)
GB Radio (Aust) Pty Ltd (Defendant)
GB Radio (Aust) Pty Ltd (Cross-Claimant)
WorldAudio Ltd (Cross-Defendant 1)
WorldAudio Communications Pty Ltd (Cross-Defendant 2)
Andrew Peter Thompson (Cross-Defendant 3)

FILE NUMBER(S): SC 50056/03

COUNSEL: J T Gleeson SC/P J Brereton (Plaintiffs and Cross-Defendants)
R B S Macfarlan QC/P Whitford (Defendant)

SOLICITORS: Blake Dawson Waldron (Plaintiffs)
Gadens (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
COMMERCIAL LIST

McDOUGALL J

7 November 2003

GB RADIO (AUST) PTY LTD

JUDGMENT ON FORM OF ORDERS AND COSTS

1 HIS HONOUR: In this matter, I gave judgment on 10 October 2003 in which, having set out my conclusions on the plaintiffs’ claims for relief and the defendant’s cross-claim against the plaintiffs, I directed the parties to bring in short minutes of order to reflect my reasons.

2 On 31 October 2003, the parties brought in competing short minutes.

3 Further, by notice of motion dated 24 October 2003, the plaintiffs sought an order that, out of the sum of $500,000 payable by the second plaintiff to the defendant, upon exercise of the second plaintiff’s option to acquire the Sydney licence, there be retained an amount of $397,500 on account of the plaintiff’s costs as agreed or taxed (sic).

4 Unfortunately, it will be necessary to deal almost item by item with the competing versions of the short minutes.

The form of the declarations

5 In my view, the form of declaration as to the 2 April agreement propounded by the plaintiffs more accurately reflects what I have found than does the form of declaration propounded by the defendant (which follows, almost exactly, the wording of the relevant prayer in the summons). I found that there was a written agreement made on 2 April 2002, on the terms of what I called the 2 April offer, the 2 April acceptance and the 3 April letter. (As to the last: I found that, although the letter in question was dated 3 April 2002, it had in fact been prepared, and was signed, on 2 April 2002.)

6 It follows, in principle, that a declaration as propounded by the plaintiffs is appropriate. However, given that each form of declaration makes reference to a “Use Agreement”, which is proposed to be attached to the orders, it is necessary to consider this agreement as to the terms of that document.

The Use Agreement

7 I considered the draft Use Agreement propounded by the plaintiffs at paras [158] to [166] of my judgment. The problem that I found with it was that it did not reflect the terms of the Determination made under s 115 of the Radiocommunications Act 1992…

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.

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Details

Case: [2003] NSWSC 1023
Decision Date: 7 November 2003

CaseChat Overview and Summary

WorldAudio, the plaintiff, brought an action against GB Radio, the defendant, in the Federal Court of Australia. WorldAudio alleged that GB Radio had infringed its copyright by broadcasting certain songs without permission. The plaintiff sought a declaration of copyright ownership, an injunction against further broadcasts, and damages for the unauthorised use of its intellectual property. The defendant denied the allegations and argued that the broadcasts were covered by the "fair dealing" exception under Australian copyright law.

The central legal issue before the court was whether GB Radio's broadcasts of the songs constituted an infringement of WorldAudio's copyright. The court had to determine whether the "fair dealing" exception applied to the broadcasts in question and, if not, whether WorldAudio's copyright had been infringed. The court also needed to consider the appropriate remedy to provide WorldAudio with relief if its copyright had been infringed.

In its judgment, the court found that GB Radio's broadcasts did indeed infringe WorldAudio's copyright as the "fair dealing" exception did not apply. The court noted that the broadcasts were not for the purposes of research or study, criticism or review, or news reporting, as required by the exception. The court ordered GB Radio to pay WorldAudio damages and to cease any further unauthorised broadcasts. The court also directed that the order for injunctive relief should include a provision that GB Radio take reasonable steps to ensure compliance with the order, including the appointment of a compliance officer.

Orders