JUDGMENT No. wucsl ZL D4. CATCHWORDS INTERLOCUTORY INJUNCTIONS - making copies of video supplied under a licence but which had terminated - balance of convenience - whether damage properly compensable ANTON PILLER ORDER - manner of execution, interpretation of order jonal Vi v Vi d Lan Thi Nguyen QG143 of 1994 RECEIVED 14 DEC 1994 FEDERAL COURT OF AUSTRALIA PRINCIPAL IN THE FEDERAL COURT OF AUSTRALIA No. OG143 of 1994 GENERAL DIVISION BETWEEN: T. VID PTY LTD Applicant AND: WEST END HK TVB VIDEO First Respondent AND: YEN PH] NGUYEN econ d AND: LAN THI NGUYEN Third Respondent JUDGE MAKING ORDER: Kiefel J. DATE OF ORDER: 2 December 1994 WHERE MADE: Brisbane MINUTES OF ORDERS THE COURT ORDERS THAT: 1. The application be dismissed. 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 in the cause. NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules IN THE FEDERAL COURT OF AUSTRALIA No. OG143 of 1994 NS GIS GENERAL DIVISION BETWEEN: VN R (0) VIDEO PTY LTD Applicant AND: WEST END HK TVB VIDEO First Respondent AND: YEN PHI NGUYEN Second Respondent AND: LAN THI NGUYEN d nde CORAM: _Kiefel J. DATE: 2 December 1994 PLACE: Brisbane REASONS FOR JUDGMENT This 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 which had been supplied to them under a licence or other agreement but which had been terminated, and with respect to any videos which they have apparently continued to receive after termination of any such agreement. The extension relates to their right to hire out copies which they already have. There is a real question as to whether they do have the rght to continue to do so, and that is not in dispute. The question then turns on matter of the balance of convenience, and, in this particular case, upon an effect which I consider has been added to the equation by the manner in which the Anton Pillar order, granted to the applicant, was executed. The other matter which influences my view that no extension of the injunctions ought to be granted is an aspect of delay, but this is not a strong feature. Counsel for the respondents have offered undertakings, as his instructing solicitor has previously done by correspondence, on behalf of each of the respondents that they will not copy any videos and that they will not hire out those videos which were released after the dates upon which the agreements were terminated. With respect to balance of convenience, then, on the hiring 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 with it, or that the price at which its videos might be hired out will be lessened, since 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 disabled from interesting other video shops in Brisbane from entering into some such agreements. The respondents say that they have suffered damage to date by reason of the injunctions previously granted and point to some loss of income. Mr Crowe 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, since we are concerned here only with additional injunctions. The effect on the respondents, which | consider 1s of some concern, 1s not just potential loss of income, which overall may not be great, if it is assessed just by reference to those videos obtained from the applicant and which they would be unable to hire out. The greater impact, which 1s deposed to in the material, is that 1t would, by reason of any order made, be obvious to people in the Vietnamese community that they have not been allowed to hire them out. The effect on their businesses in 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 might be suffered in respect of each of their small businesses in the period of some months at least before the matter comes to trial. The position in which they are placed has also been affected, and I consider likely affected, by the timing of and manner in which the Anton Pillar order was executed. I consider that it was executed in breach of its terms namely that, with Tespect to each of the three premises concerned, it was not effected within 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, have placed a particular construction upon the terms of the order. It 1s one which I do not consider 1s reasonably open. Certainly in the circumstance of an Anton Pillar order, in any event, I do not consider that it 1s right for solicitors to attempt to place an interpretation on the order which, incidentally, favours their client. If there is any doubt about the terms 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 which the solicitors might explain the matter to the Court. For present purposes, the effect of an attendance later in the evening with police officers, and apparently in circumstances where a person or agent connected with the applicant was observed to be talking to customers outside whilst this process was being undertaken, with no attempt on the part of the solicitors to dissuade him 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, | 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 undertakings noted, they will be in terms of the draft document, which will 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 Ksefel. Date: 2 December 1994 ie elard Associate Counsel for the apphcant: Mr A Crowe Solicitors for the applicant: Jonathan Wong Counsel for the respondents: Mr P Hastie Solicitors for the respondents: Fisher Robinson Date of Heanng: 22 November 1994, 2 December