wed ot . 4 huey NOT INTENDED FOR DISTRIBUTION IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION No. WA G61 of 1985 _ eee ee BETWEEN: On CALSIL LIMITED \ Applicant and FERALD PTY. LIMITED -\" Re CORAM: TOOHEY J. 12 July 1985 EX TEMPORE REASONS FOR JUDGMENT The motion before the court raises some quite important and difficult questions, but 1t is necessary that I dispose of the Matter now, at least for the purposes of any interim relief that may be granted to the applicant. I should say at once that I am satisfied from the Material before me that the applicant has made out a prima facie case of a contravention of 5.52 of the Trade Practices Act 1974. On the basis of current authorities, it is perhaps unnecessary for me to go that far, and it 15 enough for me to say that the material furnished by the applicant has raised a serious question to be tried. However, I go further than that because the whole tenor of the video is that the problems encountered with the house at Wanneroo featured in the video were due, if not wholly at least 2. substantially, to the use of sand lime bricks. That appears more than once in the transcript of the commentary accompanying the video, in particular the commentary in respect of 30 May 1985 and 4 June 1985, There is sufficient in the material furnished through Mr. Schaffer to show that the applicant is the principal manufacturer of calcium silicate bricks in this state. Indeed there is a positive statement by Mr. Schaffer that the bricks shown in the video are bricks produced by his company, although that would not of itself be enough because what he may be able to identify through his own particular knowledge is not something which the public would necessarily identify. Hut the fact that the applicant is the principal manufacturer of calcium silicate bricks in this State is, I think, enough to show that there is a reasonable likelihood that anyone seeing the video would identify the bricks in question with bricks produced by or bricks similar to those produced by the applicant. I am satisfied from the affidavit of Mr. Thorpe that to the extent that the video attributes the faults in this building to the type of bricks used, which it undoubtedly does, it is false and that the problems encountered with the house in question were due largely to a failure to follow the roof detail provided by the builder. In any event they were not the result of any defect in the quality of the bricks provided. That heing the case, I have little hesitation in granting interim relief in terms of a restraint on the respondent from publishing or distributing the video. That may mot cure that which has been done already, LFS) because 1t is apparent that the video has been distributed to at least two television stations. Certainly an order against the respondent prohibiting any further distribution would serve some purpose; and I would think that, once it were known that the injunction had heen granted, anyone in possession of the video would give careful thought to any publication of it because of the likelihood of action by the applicant against that person, organisation or company. My real concern lies in the additional relief which is sought by the applicant, in terms that the respondent permit representatives of the applicant to go onto its premises for the purpose of searching those premises and removing into the custody of the applicant's solicitors the material that is described in the minute of order. The application goes further, although I think not the minute, by seeking an order that the production Manager of the respondent or some other proper officer disclose on oath to the applicant the identity of the person or persons who commissioned the respondent to make the video. This type of relief is said to be justified by what has become known through the authority of the particular case in which such relief was granted, as an Anton Piller order. Two questions seem to me to arise in that regard. One is the jurisdiction of this Court to make such an order; the second is whether, assuming jurisdiction to exist, such an order is appropriate. As to the first question, I am satisfied that 5.23 of the Federal Court of Australia Act 1976 which reads: "The Court has power in relation to matters in which it has jurisdiction to make orders of such kinds, including interlocutory orders, and to issue or direct the issue of writs of such kinds as the Court thinks appropriate." confers sufficient jurisdiction on this Court to grant the relief sought by the applicant. Although Ellicott J. was concerned with a different form of injunction in Hiero v. Somers (1984) 68 F.L.R. 171, I am satisfied that the reasoning which prompted his Honour to hold that jurisdiction existed in that case is apposite here. That brings me to the next and more difficult question of whether relief should in fact he granted in the present case. As I suggested to Mr. Ipp, counsel for the applicant, in the course of argument, Anton Piller orders have been made for a number of reasons, including the preservation of material that is likely to he destroyed (material which is crucial to the applicant's or plaintiff''s cause of action) or in the case of Pirated records or pirated tapes in the possession of a distributor where the order would assist the person who complains of the pirating of the material to learn something about its source and thereby better equip himself to recover damages, or for that matter to obtain injunctive relief. Mr. Ipp has sought to persuade me that the principles in those cases are applicable here, but I am afraid I am not persuaded. I recognise the submission that without such an order material in the possession of the respondent may be destroyed, but there is nothing before me to suggest that that risk is any greater in the present case than it is in any other case. Mr. Ipp 1B) has put that matter to me very much in terms that a respondent who is of a mind to do what this respondent has done - that is to send unsolicited material to television stations, material which it may be inferred has been prepared at the instance of some other party - is likely to destroy any relevant material in its possession. But those are strong words and I would require more than is presently before me to draw that inference. It has also been said that without an order of this sort, the applicant may not be able to ascertain the source of the video, that is the name of the person who commissioned it. That may or may not be so; I say nothing about what might be obtained by way of discovery, interrogatories, or indeed by cross-examination if that point were reached. But Iam not satisfied that I should make an Anton Piller order simply to allow the applicant to obtain the name of the person who has commissioned the respondent to prepare the video, if indeed sucha person exists. For those reasons, while I am prepared to grant interim relief to the applicant, I am not prepared at this stage to grant relief of the sort that the applicant has asked for in paras.2 and 3 of its minute. I say "at this stage" only to make it clear that the matter may arise for further argument later on the basis of other material, and I wish to say nothing to suggest that the applicant may not be in a position to renew this application at a later stage. I say that, appreciating of course that the basis of the Anton Piller order may largely have disappeared by then. But questions may arise between now and the hearing, and indeed at the hearing itself, of the sort that have been canvassed here this afternoon. In the light of those reasons, Mr. Ipp, I am prepared to grant om an interim basis, bearing in mind that this is an ex parte application, an order in terms of para.l of the minute. I do not know whether you seek any expansion of that order that is not inconsistent with the reasons I have delivered this afternoon. I am not suggesting that the minute itself is not adequate, but I Simply give you that opportunity since I have not been prepared to grant orders in terms of paras.2 and 3. Mr. Ipp: Thank you, your Honour. I think I would be satisfied with that. Toohey J.: I propose that there be an order in terms of para.i, but deleting in lines 4 and 5 the words "the determination of this proceeding or earlier" and substituting simply the word "further". So counsel are clear as to what is involved, para.1l would then read: The respondent, its agents, servants, officers or employees and each of them be restrained, and an injunction is hereby granted restraining them and each of them until further order from publishing or causing to publish or distributing or causing to be distributed the documentary, Safe as Houses, A Special Report. There will then be a further paragraph, para.2: The further hearing of the application for interlocutory relief be adjourned until Friday, 26 July, at 10.15 a.m. Then 3: Liberty to apply on 48 hours notice. Then 4: The applicant serve on the respondent as soon as reasonably possible a copy of this order and of the application and affidavits in support, save for exhibit JM52 to the affidavit of John Michael Schaffer sworn 12 duly 1985. Then 5: On request by the respondent the applicant make available for viewing by the respondent a copy of the video tape, exhibit JMS2 to the affidavit of John Michael Schaffer sworn 12 duly 1985. and 6: Costs of today's hearing he reserved. I certify that this and the six preceding pages are a true copy of the Reasons for Judgment herein of his Honour Mr. Justice Toohey Associate