Brilliant Digital Entertainment Pty Ltd v Universal Music Australia Pty Ltd [2004] FCA 448

FEDERAL COURT OF AUSTRALIA

Brilliant Digital Entertainment Pty Ltd v Universal Music Australia Pty Ltd [2004] FCA 448 PRACTICE AND PROCEDURE – leave to appeal from interlocutory judgment - Anton Piller orders made in copyright suit - application to set aside orders dismissed by single judge - principles in relation to making Anton Piller orders - leave to appeal required in respect of interlocutory orders - hearing of leave application separately from the hearing of the substantive appeal - relevant considerations - expedition - convenience - saving time and expense - distinction between the requirements for leave and the determination of the appeal - relevant test for determining whether leave to appeal should be granted - sufficient doubt as to correctness of primary decision - substantial injustice - interlocutory appeals on practice and procedure matters generally discouraged - determination discretionary - circumstances where leave applications and substantive appeals could be heard together - leave application to be heard separately from the appeal - (CTH) Federal Court of Australia Act 1976 ss 23, 24(1A)

Federal Court of Australia Act 1976 (Cth) ss 23, 24(1A)

Universal Music Australia Pty Ltd v Sharman License Holdings Ltd [2004] FCA 183 referred to Television Broadcasts Limited v Nguyen (1988) 21 FCR 34 referred to Décor Corp Pty Limited v Dart Industries Inc (1991) 33 FCR 397 referred to Adam P Brown Male Fashions Pty Limited v Philip Morris Inc (1981) 148 CLR 170 referred to Genetics Institute Inc v Kirin-Amgen Inc (1999) 43 IPR 189 discussed Renaud Cointreau v Cordon Bleu International Ltee (2001) 52 IPR 382 at 401 discussed Kenman Kandy Australia Pty Limited v Registrar of Trade Marks (2002) 122 FCR 494 applied Bright v Femcare Ltd (2002) 195 ALR cited re the Will of F B Gilbert (deceased) (1946) 46 SR (NSW) 318 cited