Albatross Travel Group Pty Ltd v Euro International Travel Pty Ltd [2003] FCA 1275

FEDERAL COURT OF AUSTRALIA

Albatross Travel Group Pty Ltd v Euro International Travel Pty Ltd [2003] FCA 1275 ALBATROSS TRAVEL GROUP PTY LTD v EURO INTERNATIONAL TRAVEL PTY LTD Q153 OF 2003 COOPER J BRISBANE 17 OCTOBER 2003

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY Q153 OF 2003

BETWEEN: ALBATROSS TRAVEL GROUP PTY LTD

(ACN 010 565 143)

APPLICANT

AND: EURO INTERNATIONAL TRAVEL PTY LTD

(ACN 003 902 636)

RESPONDENT

JUDGE: COOPER

DATE OF ORDER: 17 OCTOBER 2003

WHERE MADE: BRISBANE

THE COURT ORDERS THAT: 1. The respondent, whether by itself, its servants, agents or otherwise and specifically by Brochure Flow International Limited be restrained from distributing or otherwise using in trade or commerce a brochure entitled 'Anzac 2004 Cruise and Gallipoli Tours' in the form which is exhibit 'E' to the affidavit of Euan Maclamroch Landsborough filed 10 October 2003 pending the trial of the proceedings or earlier order. 2. The motion seeking to transfer the proceedings to the New South Wales registry be dismissed. 3. Costs of the application for interlocutory relief are reserved. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY Q153 OF 2003

BETWEEN: ALBATROSS TRAVEL GROUP PTY LTD

(ACN 010 565 143)

APPLICANT

AND: EURO INTERNATIONAL TRAVEL PTY LTD

(ACN 003 902 636)

RESPONDENT

JUDGE: COOPER

DATE: 17 OCTOBER 2003

PLACE: BRISBANE

REASONS FOR JUDGMENT 1 This is an application to extend an injunction pending the determination of these proceedings which I granted on an interim basis on Friday 10 October 2003. On that occasion, I indicated that I was satisfied that there was a serious question to be tried as to an infringement of the applicant's copyright in certain material contained in advertising brochures for tours by the respondent. I remain of that view. 2 Essentially, the matter comes down to a question of the balance of convenience. 3 Having considered the arguments on both sides in relation to the relative strengths and weaknesses of the case and the defence of the parties, I regard the strengths and weaknesses of the case as being a neutral factor in the balance of convenience. I regard as an important factor, that the applicant, in my view, will have great difficulty in quantifying and proving up any damage from the alleged infringement of its copyright in the brochures if the continued distribution of those brochures is not restrained. 4 Against that, the position of the respondents must be taken into account. The material which has been put in by the respondents in relation to its concerns as to damage which may be suffered by it in the event that the injunction stands is predicated on a basis that to restrain the injunction effectively puts the respondent out of business in relation to the marketing of the tours for 2004. The whole of the calculation of damages is predicated upon the basis that a cruise ship charter will be cancelled, that deposits which have been pre-paid for that charter and also accommodation will be lost, and that a loss of profit in the vicinity of $350,000 will be incurred. 5 In my view, damages of that type would be extremely difficult to prove up. They do not naturally flow from the granting of an injunction restraining the distribution of a brochure. Rather, the likely damage that would be sustained by the respondent in the event that the applicant is called upon to pay under the undertaking as to damages would be for the costs thrown away in relation to the preparation of the brochures which remain undistributed at this time. That is, it is difficult at this stage to quantify the alleged damages because there is no material before the Court indicating the cost of the original brochure run, nor is there any material before the Court indicating the extent to which brochures are presently held by the respondent as a result of the granting of the interim injunction. 6 Two things, I think, need to be said in relation to the respondent's position. First, it remains within the ability of the respondent to produce material based on its present brochure which would not infringe any claim which is made. That is, the respondent is not denied the benefit of all of the work which has been done in producing the brochure. There is some dispute as to how long it would take to produce non-offending material, but at the highest, such production would take a matter of weeks, not months. 7 The second point that needs to be made is that the respondent maintains a website where the brochure is displayed. There is no suggestion in the material that the brochure which is presently on that website cannot be modified quickly so as to overcome the present problem, nor is there any basis established on the material as to why other means of marketing cannot be employed, if they are not presently being employed. That is, the material suggests that the business of the respondent has come to a standstill because of the present interim injunction. I do not accept that that is a likely consequence, and certainly there is nothing specifically in the material that persuades me that this is so. 8 The matter of concern on the other side is the adequacy of the undertaking as to damages. The applicant, on the material before me, is not a company of much substance in the sense that it does not appear to have a wealth of assets and its income in terms of its trading appears to be relatively modest, in the vicinity, one assumes on the figures, of around $30,000 per year. It is said that it is supported by a substantial United Kingdom operator, but I note that this operator does not offer to put up the security for damages. 9 So ultimately the relevant consideration is a question of balancing the risk of the worth of the undertaking against the reality of the true damages which may flow from a restraint of the distribution of a brochure until such time as the trial can be heard, it remaining in the power of the respondent to take steps to produce an alternative brochure. 10 On balance, I am persuaded that the balance of convenience favours the maintenance of the injunction which is presently in place until the trial of the action or earlier order, and I do not propose to make the undertaking as to damages conditional upon the lodgement of security. 11 There then arises the question as to whether or not the proceedings ought to be transferred to the New South Wales registry and consolidated with proceedings N1470 of 2003 issued in that registry. The proceedings issued in New South Wales seek relief in relation to the making of threats alleging infringement of copyright by the applicant against the respondent. The basis upon which the transfer is sought appears to be that those proceedings were first in time and that the respondent and some of its witnesses are in Sydney. 12 It appears from the material that the instant proceedings were filed in Queensland because the applicant conducts business in this State, the applicant's solicitors are in the State, and the likelihood is that the majority of the witnesses proposed to be called by the applicant on the trial of the action are resident in Queensland. On that basis, it seems to me that the matter is in equilibrium. There are no strong reasons to do one thing or the other, and on that basis I do not propose to transfer the proceedings to the New South Wales registry. 13 I propose also to reserve the question of costs of the applications for interlocutory relief to the trial.