Kirribilli Film Productions Pty Ltd & Ors v One Australia America's Cup Team 1995 Pty Ltd & Anor [1995] FCA 377

IN THE FEDERAL COURT OF AUSTRALIA) ) NEW SOUTH WALES DISTRICT REGISTRY) NG 88 of 1995 ) GENERAL DIVISION ) BETWEEN: KIRRIBILLI FILM PRODUCTIONS PTY LIMITED and ANAVALE HOLDINGS PTY LIMITED TOGETHER TRADING AS SPORTSMASTER PROGRAMS Applicants

AND: ONE AUSTRALIA AMERICA'S CUP TEAM 1995 PTY LIMITED First Respondent JAMES R. ERSKINE Second Respondent

CORAM: Burchett J. PLACE: Sydney DATE : 7 June 1995

REASONS FOR JUDGMENT

BURCHETT J.:

In this matter, the first question is whether there is a serious question to be tried. It seems to me that on a number of bases there is a serious question to be tried. They have been elaborated as we have gone through the evidence and the argument, and I do not propose to re-state them all now. But, as to one matter, there was some evidence indicative of a significant admission in relation to the infringement of copyright involved. It was suggested that the admission was made in the course of discussions that were without prejudice. It is, of course, trite law that a discussion can be without prejudice although those words are not used, just as a discussion in which those words are used may in fact not be covered by without prejudice privilege. In this case it seems to me that the objection fails. Reading the conversation in the context, so far as the evidence reveals it, I do not think that it was a without prejudice conversation, except perhaps to the extent of - and I emphasize perhaps - so much of it as may have been concerned with an attempt to fix a quantum. In that regard, I refer to the decision of the Court of Appeal in Tomlin v Standard Telephones and Cables Limited (1969) 1 WLR 1378. It should be borne in mind that this conversation did not take place after the institution of proceedings, and in an attempt to settle them, but rather was more in the nature of a spontaneous reaction to the raising of a complaint. If I am right in thinking that inferences arise from the evidence which make out a sufficient case at the interlocutory stage, it is also important that very little emerges by way of calling that case into question. Indeed, there was a cessation of the activity complained of and a formal statement of that cessation. I accept that Mareva relief should not be granted too readily, but this is a very peculiar case. On the face of the material before me, it is strongly suggested that the corporate respondent is a one-venture company, or if not to be described with complete accuracy as a one-venture company, nevertheless, a company with a very precise primary objective, coupled with, possibly, a secondary objective which is at least as suggestive of risk of the dissipation of its assets as the primary objective itself. In other words, once the primary objective failed, namely, when the America's Cup was not won, the secondary objective appears to have been the utilisation of the remaining assets, rather than merely their retention and investment. Assertions have been made, and made with some emphasis, that the directors are honourable men, and that the assets will not be disposed of so as to defeat the claim brought. But along with those assertions has been an intransigent refusal to offer any form of security for that assurance. It seems to me that intransigence of this nature, in itself, gives rise to inferences. There is, despite what Mr Cobden put to me, to my mind no rational basis on which it can be true that the company is not at any risk at all of dissipation of these assets, and yet at the same time it can have good reason to incur the cost of the present application, contested as it has been, rather than make a serious attempt to provide some real security for the verbal assurance that has been given by the solicitor's letter. At the same time, on the balance of convenience, the assurance that has been given by words makes it difficult for the respondent company to suggest that it would really be seriously inconvenienced by being required to do that which it has said it will in any event do, namely, retain sufficient assets to meet the applicants' claim. If that was truthfully asserted, it is difficult to see what is the apprehension of loss to be put into the scales on behalf of the respondent company in weighing the balance of convenience. I take the principle applicable to a request for a Mareva injunction to be that which was laid down in the judgment of Deane J in Jackson v Sterling Industries Limited (1987) 162 CLR 612 at 623, where he said, citing from a judgment of Lord Denning, M.R. in Rahman (Prince Abdul) v Abu-Taha [1980] 1 WLR 1268 at 1273: "[A] Mareva injunction can be granted against a man even though he is based in this country if the circumstances are such that there is a danger of his absconding, or a danger of the assets being removed out of the jurisdiction or disposed of within the jurisdiction, or otherwise dealt with so that there is a danger that the plaintiff, if he gets judgment, will not be able to get it satisfied."