Sky Channel Pty Ltd v Intertwine Pty Ltd [2003] FCA 67

FEDERAL COURT OF AUSTRALIA

Sky Channel Pty Ltd v Intertwine Pty Ltd [2003] FCA 67

SKY CHANNEL PTY LIMITED (ABN 77 009 136 010) & ANOR v

INTER-TWINE PTY LIMITED (ACN 007 204 908) & ANOR

N 93 of 2003

LINDGREN J

11 FEBRUARY 2003

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 93 OF 2003

BETWEEN: SKY CHANNEL PTY LIMITED

(ABN 77 009 136 010)

FIRST APPLICANT

AUSTAR ENTERTAINMENT PTY LTD

(ACN 068 104 680)

SECOND APPLICANT

AND: INTER-TWINE PTY LIMITED

(ACN 007 204 908)

FIRST RESPONDENT

TREVOR ERNEST CURTIS RICHARDS

SECOND RESPONDENT

JUDGE: LINDGREN J

DATE OF ORDER: 7 FEBRUARY 2003

WHERE MADE: SYDNEY

BY CONSENT: The applicants undertake: (a) to submit to such order (if any) as the Court may consider to be just for the payment of compensation, to be assessed by the Court or as it may direct, to any person, whether or not a party, adversely affected by the operation of the orders made on 7 February 2003; and (b) to pay the compensation referred to in (a) to the person there referred to, and noting the undertaking to the court of Kate Harrison, solicitor for the applicant:

the court orders THAT: 1. The Applicants' Notice of Motion dated 7 February 2003 be made returnable instanter. Entry and search of premises and vehicles on or around the premises 2. Thatforthwith upon service of these orders, the First and Second Respondents, whether by themselves, their servants, agents or otherwise, and any person apparently occupying or in charge of the premises hereafter referred to, permit a total of: (a) not more than two (2) representatives of the Applicants; (b) not more that two (2) partners or employees of the Applicants' solicitors Gilbert + Tobin (collectively referred to as the Applicants' Representatives); and (c) a solicitor other than a member of Gilbert + Tobin (Independent Solicitor) to enter and remain upon the premises of the Royal Mail Hotel at Melbourne Street, Mulwala, NSW (the Premises) (including the whole of the buildings and any appurtenant buildings, garages or basements on the Premises) or in any of the vehicles under the control of the Respondents or either of them which may be on or around the Premises at any hour between 9am and 7pm from Monday, 10 February2003 to Tuesday 11 February 2003 inclusive and to remain, or if necessary, to re-enter the Premises, until the Orders have been complied with. 3. Thatforthwith upon service of these orders, the First and Second Respondents and any person apparently occupying or in charge of the Premises permit the Applicants' Representatives to: (a) search for, inspect, test, examine (including with the use of facilities examine, to decode or restore data), photograph or video tape all and any smartcards, set top boxes, converters (collectively Decoder Devices), and associated cabling relating to the display of subscription television (Associated Cabling); and (b) remove into the possession and safekeeping of the Applicants' solicitors all or any Decoder Devices. Restrictions on the Service and Carrying out of Orders 2 and 3 4. ThatOrders 2 and 3 are subject to the following restrictions: (a) The Orders must be served by the Independent Solicitor, and Orders 1 and 2 must be carried out in his or her presence and under his or her supervision. (b) At the time the Orders are served on the Respondents or the person in charge of the Premises, the Independent Solicitor will also serve a notice in the form set out in Schedule 2 to this Application. (c) The Orders do not require the person served with the Orders to allow anyone to enter the Premises who in the view of the Independent Solicitor could gain commercially from anything he or she might read or see on the Premises if the person served with the Orders objects. (d) Nothing may be removed from the Premises until a list of the items to be removed has been prepared, and a copy of the list has been supplied to the person served with the Orders, and he or she has been given a reasonable opportunity to check the list. Obtaining Legal Advice and Applying to the Court 5. That before permitting entry to the Premises by any person other than the Independent Solicitor and one of the Applicants' Representatives, the Respondents may seek legal advice, and apply to the Court to vary or discharge the orders, provided that any such application is made promptly upon service of these orders and further provided that if the Respondents wish to seek legal advice as permitted by these orders, they must first inform the Independent Solicitor and keep him or her informed of the steps being taken. 6. That while the Respondents seek legal advice in accordance with paragraph (a) above, entry to the Premises to any person other than the Independent Solicitor and one of the Applicants' Representatives may be refused, and permission for the search to begin may be refused, for a period not to exceed one hour (unless the Independent Solicitor agrees to a longer period). Prohibited Disclosure 7. That forthwith upon the service of these orders, the First and Second Respondents, whether by themselves, their servants, agents or otherwise, and any person apparently occupying or in charge of the Premises be restrained from informing any other person of the existence of these orders or their proposed execution, except for the purpose of obtaining legal advice, until 96 hours after the service of the orders. Delivery of Items 8. That forthwith upon the service of these orders, the First and Second Respondents: (a) must immediately disclose the whereabouts of, and make available to the Applicants' Representatives, all Decoder Devices and Associated Cabling in their possession, custody or power whether located on the Premises or otherwise; and (b) provide to the Applicants' Representatives such assistance as they may require to carry out the purposes set out in order 3. Prohibited Acts 9. That until further order of the Court, the First and Second Respondents and any person apparently occupying or in charge of the Premises, whether by his, her or its servants, agents or otherwise, be restrained from moving, destroying, altering, concealing, removing from the Premises or parting with possession or control of any items which are or could be considered to be Decoder Devices, Associated Cabling or documents relating to the supply and installation of Decoder Devices (Decoder Documents) (except by delivery of the Decoder Devices to the Applicants' Representatives in accordance with these orders).