Foxtel Management Pty Ltd v Australian Video Retailers Association Limited [2005] FCA 107

FEDERAL COURT OF AUSTRALIA

Foxtel Management Pty Ltd v Australian Video retailers Association Limited [2005] FCA 107

PRACTICE AND PROCEDURE – findings previously made as to misleading and deceptive conduct against respondent and cross-respondent – issues as to consequential relief – submission of one party that corrective advertising should not be ordered against either party – limited scope of consequential relief ordered FOXTEL MANAGEMENT PTY LTD v AUSTRALIAN VIDEO RETAILERS ASSOCIATION LIMITED (NOW AUSTRALIAN VIDEO RENTAL RETAILERS ASSOCIATION) N 1054 OF 2004 CONTI J 16 FEBRUARY 2005 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1054 OF 2004

BETWEEN: FOXTEL MANAGEMENT PTY LTD

APPLICANT

AND: AUSTRALIAN VIDEO RETAILERS ASSOCIATION LIMITED (NOW AUSTRALIAN VIDEO RENTAL RETAILERS ASSOCIATION LIMITED)

RESPONDENT

AUSTRALIAN VIDEO RETAILERS ASSOCIATION LIMITED (NOW AUSTRALIAN VIDEO RENTAL RETAILERS ASSOCIATION LIMITED)

CROSS-CLAIMANT

FOXTEL MANAGEMENT PTY LTD

CROSS-RESPONDENT

JUDGE: CONTI J

DATE OF ORDER: 16 FEBRUARY 2005

WHERE MADE: SYDNEY

ORDERS

THE COURT ORDERS THAT: 1. Orders 1 and 3 made on 8 December 2004 on an interim basis be discharged. 2. AVRA be and is hereby restrained from further publishing and distributing and causing to be published and distributed by any means (including without limitation at AVRA's website at www.avra.com.au): (i) each of the three sets of advertising material attached to the Court's reasons for judgment published on 8 December 2004; and (ii) any material containing or making representations to the effect of those representations contained in those three sets of advertising materials and found by the Court to be misleading and deceptive. 3. Within 28 days AVRA deliver up on oath to Foxtel or its nominated agent, for destruction under the supervision of Foxtel: (i) all materials constituting or forming part, or which have previously formed part of, AVRA's 'pro rental kit' (that is, similar to Exhibit A6 in the proceedings), which are in its possession, custody or control; and (ii) all other advertisements, pamphlets and other documents or materials in any form (whether electronic or hard copy) in its possession, custody or control containing any representation to the effect of those the subject of the three sets of advertising materials annexed to the Court's reasons for judgment published on 8 December 2004. 4. AVRA pay Foxtel's costs of the proceedings to date, other than those the subject of AVRA's cross-claim, such costs to be taxable and payable within fourteen days of taxation. 5. AVRA have liberty to apply in relation to the scope of Order 3 above. 6. Foxtel be and is hereby restrained from further distributing and publishing advertisements in relation to Foxtel's Box Office service in or to the effect of the following: (i) page 4 of the 'Welcome to the Revolution' brochure as distributed to members of the public on or about 26 March 2004 (being referred to in par 105 of the Court's reasons for judgment published 8 December 2004); (ii) page 5 of the 'Television Revolution is Coming' brochure as distributed to members of the public on or about February 2004 (being referred to in par 106 of the Court's reasons for judgment published 8 December 2004); (iii) the first two paragraphs of page 2 of the Lift-Out Advertisements which appeared in the 'Herald Sun' newspaper and 'Adelaide Advertiser' newspaper on 17 March 2004 and in the Brisbane 'Courier Mail' newspaper on 18 March 2004 (being referred to in par 107 of the Court's reasons for judgment published 8 December 2004); (iv) page 6 of the extract from Foxtel's website at www.foxtel.com.au as at 26 June 2004 (being referred to in par 108 of the Court's reasons for judgment published 8 December 2004); and (v) the so-called 'movie availability misrepresentation' and 'comparison misrepresentations' the subject of the 'Television advertisement' identified by key number FXTBR1624 (being referred to in par 110 of the Court's reasons for judgment published 8 December 2004). 7. Foxtel pay AVRA's costs of the cross-claim of AVRA in the proceedings, such costs to be taxable and payable within fourteen days of taxation. 8. Foxtel have liberty to apply in relation to the scope of Order 6 above. 9. The matter be listed for directions as to pursuit of the parties' respective claims as to damages on 3 March 2005 at 4.20pm.