FEDERAL COURT OF AUSTRALIA Aristocrat Technologies Australia Pty Ltd v Global Gaming Pty Limited [2006] FCA 862 PRACTICE AND PROCEDURE – Search order - Order 25B Federal Court Rules – Practice Note 24 – whether strong prima facie case on accrued cause of action ARISTOCRAT TECHNOLOGIES AUSTRALIA PTY LIMITED v GLOBAL GAMING PTY LIMITED AND ANOR NSD 1271 of 2006 ALLSOP J 30 JUNE 2006 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 1271 of 2006 BETWEEN: ARISTOCRAT TECHNOLOGIES AUSTRALIA PTY LIMITED APPLICANT AND: GLOBAL GAMING PTY LIMITED FIRST RESPONDENT ANTHONY EDWARD ANDREWS SECOND RESPONDENT JUDGE: ALLSOP J DATE OF ORDER: 30 JUNE 2006 WHERE MADE: SYDNEY THE COURT ORDERS THAT: PENAL NOTICE TO: Global Gaming Supplies Pty Ltd TO: Anthony Edward Andrews IF YOU (BEING A PERSON BOUND BY THIS ORDER): (A) REFUSE OR NEGLECT TO DO ANY ACT WITHIN THE TIME SPECIFIED IN THE ORDER FOR THE DOING OF THE ACT; OR (B) DISOBEY THE ORDER BY DOING AN ACT WHICH THE ORDER REQUIRES YOU TO ABSTAIN FROM DOING, YOU WILL BE LIABLE TO IMPRISONMENT, SEQUESTRATION OF PROPERTY OR OTHER PUNISHMENT. ANY OTHER PERSON WHO KNOWS OF THIS ORDER AND DOES ANYTHING WHICH HELPS OR PERMITS YOU TO BREACH THE TERMS OF THIS ORDER MAY BE SIMILARLY PUNISHED. TO: Global Gaming Supplies Pty Ltd Anthony Edward Andrews This is a 'search order' made against you on 30 June 2006 by Justice Allsop at a hearing without notice to you after the Court was given the undertakings set out in Schedule B to this order and after the Court read the affidavits listed in Schedule C to this order. THE COURT ORDERS: INTRODUCTION 1. (a) the application for this order is made returnable immediately. (b) the time for service of the application, supporting affidavits and originating process is abridged and service is to be effected by 2pm on 4 July 2006. 2. Subject to the next paragraph, this order has effect up to and including 5 July 2006 ('the Return Date'). On the Return Date at 9.30am there will be a further hearing in respect of this order before Justice Rares. 3. You may apply to the Court at any time to vary or discharge this order, including, if necessary, by telephone to the judge referred to in the immediately preceding paragraph (phone No. (02) 9230 8491) or to the Duty Judge (through the security desk phone No. (02) 9230 8000 or (02) 9230 8025). 4. This order may be served only between 9:00am and 2:00pm on a business day. 5. In this order: (c) 'applicant' means the person who applied for this order, being Aristocrat Technologies Australia Pty Ltd. (d) 'independent computer expert' means each of the persons identified as independent computer experts in the search party referred to in Schedule A to this order. (e) 'independent solicitor' means each of the persons identified as independent solicitors in the search party referred to in Schedule A to this order. (f) 'listed thing' means any thing referred to in Schedule A to this order. (g) 'premises' means any and each of the premises identified in Schedule A to this order, including any vehicles and vessels that are under the respondent's control on or about the premises or that are otherwise identified in Schedule A. (h) 'search party' means the persons identified or described as constituting the search party in Schedule A to this order. (i) 'thing' includes a document. (j) 'you', where there is more than one of you, includes all of you and includes you if you are a corporation. (k) Aristocrat Artwork means the artwork depicted on the insert panels of any Aristocrat Gaming Machines or the reel strips of any Aristocrat Games. (l) Aristocrat EPROMs means EPROMs onto which have been burnt Aristocrat Game Software with the licence of the Applicant. (m) Aristocrat Games means the Games listed in Schedule 1. (n) Aristocrat Game Materials means Aristocrat Artwork, Aristocrat EPROMs and Aristocrat Game Software. (o) Aristocrat Gaming Machines means Gaming Machines on which Aristocrat Games have been installed. (p) Aristocrat Game Software means the computer programs and associated literary works created for the purpose of being installed on Gaming Machines for the playing of Aristocrat Games. (q) Game means an electronic game for use or an electronic gaming machine. (r) Gaming Machine means a cabinet, display unit, machine or other device on which Games are installed. (s) Infringing Aristocrat Game Materials means any artwork, EPROM or software (including any associated literary work) reproducing the whole or a substantial part of any Aristocrat Artwork, Aristocrat EPROM or Aristocrat Game Software, that is made without the licence of the Applicant, (t) any requirement that something be done in your presence means: (A) in the presence of you or of one of the persons described in (6) below; or (B) if there is more than one of you, in the presence of each of you, or, in relation to each of you, in the presence of one of the persons described in (6) below. 6. This order must be complied with by you by: (a) yourself; or (b) any director, officer, partner, employee or agent of yourself; or (c) any other person having responsible control of the premises. 7. This order must be served by, and be executed under the supervision of, the independent solicitor. ENTRY, SEARCH AND REMOVAL 8. Subject to paragraphs 10 to 20 below, upon service of this order you must permit members of the search party to enter the premises so that they can carry out the search and other activities referred to in this order. 9. Having permitted members of the search party to enter the premises, you must: (a) permit them to leave and re-enter the premises on the same and the following day until the search and other activities referred to in this order are complete; (b) permit them to search for and inspect the listed things and to make or obtain a copy, photograph, film, sample, test or other record of the listed things; (c) disclose to them the whereabouts of all the listed things in the respondent's possession, custody or power, whether at the premises or otherwise; (d) disclose to them the whereabouts of all computers, computer disks and electronic information storage devices or systems at the premises in which any documents among the listed things are or may be stored, located or recorded and cause and permit those documents to be printed out; (e) do all things necessary to enable them to access the listed things, including opening or providing keys to locks and enabling them to access and operate computers and providing them with all necessary passwords; (f) permit the independent solicitor to remove from the premises into the independent solicitor's custody (including, if necessary, warehouse premises rented by the independent solicitor for this purpose): (i) the listed things or things which reasonably appear to the independent solicitor to be the listed things and any things the subject of dispute as to whether they are listed things; (ii) the copies, photographs, films, samples, tests, other records and printed out documents referred to above; and for that purpose permit, if so directed by the independent solicitor, such vehicle or conveyance to be brought onto the land on which the premises are located together with such persons as may reasonably be required to enable the physical removal of things; (g) permit the independent computer expert (if there is one) to search any computer and make a copy or digital copy of any computer hard drive and permit the independent computer expert (if any) or the independent solicitor to remove any computer hard drive and computer from the premises as set out in paragraphs 20 and 21 below. 9A. The members of the search party who are employees of the applicant may only do the following things permitted by paragraph 9(b): (a) inspect the listed things; and (b) test the listed things, and only under the direction of the independent solicitors. RESTRICTIONS ON ENTRY, SEARCH AND REMOVAL 10. This order may not be executed at the same time as a search warrant (or similar process) is executed by the police or by a regulatory authority. 11. You are not required to permit anyone to enter the premises until: (a) the independent solicitor serves you with copies of this order and any affidavits referred to in Schedule C (confidential exhibits, if any, need not be served until further order of the Court); and (b) you are given an opportunity to read this order and, if you so request, the independent solicitor explains the terms of this order to you. 12. Before permitting entry to the premises by anyone other than the independent solicitor, you, for a time (not exceeding two hours from the time of service or such longer period as the independent solicitor may permit): (a) may seek legal advice; (b) may ask the Court to vary or discharge this order; (c) (provided you are not a corporation) may gather together any things which you believe may tend to incriminate you or make you liable to a civil penalty and hand them to the independent solicitor in (if you wish) a sealed envelope or container; and (d) may gather together any documents that passed between you and your lawyers for the purpose of obtaining legal advice or that are otherwise subject to legal professional privilege or client legal privilege, and hand them to the independent solicitor in (if you wish) a sealed envelope or container. 13. Subject to paragraph 22 below, the independent solicitor must not inspect or permit to be inspected by anyone, including the applicant and the applicant's solicitors, any thing handed to the independent solicitor in accordance with subparagraphs 12(c) and (d) above and the independent solicitor must deliver it to the Court at or prior to the hearing on the Return Date. 14. During any period referred to in paragraph 12 above, you must: (a) inform and keep the independent solicitor informed of the steps being taken; (b) permit the independent solicitor to enter the premises but not to start the search; (c) not disturb or remove any listed things; and (d) comply with the terms of paragraphs 25 and 26 below. 15. Any thing the subject of a dispute as to whether it is a listed thing must promptly be handed by you to the independent solicitor for safekeeping pending resolution of the dispute or further order of the Court. 16. Before removing any listed things from the premises (other than things referred to in the immediately preceding paragraph), the independent solicitor must supply a list of them to you, give you a reasonable time to check the correctness of the list, and give you and the applicant's solicitors a copy of the list signed by the independent solicitor. 17. The premises must not be searched, and things must not be removed from the premises, except in the presence of you or of a person who appears to the independent solicitor to be your director, officer, partner, employee, agent or other person acting on your behalf or on your instructions. 18. If the independent solicitor is satisfied that full compliance with the immediately preceding paragraph is not reasonably practicable, the independent solicitor may permit the search to proceed and the listed things to be removed without full compliance. 19. The applicant's solicitors and the independent solicitor must not allow the applicant in person to inspect (subject to Order 9A above) or have copies of any thing removed from the premises nor communicate to the applicant information about its contents or about anything observed at the premises until 4:30pm on the Return Date or other time fixed by further order of the Court. COMPUTERS 20. (a) The search party must include a computer expert who is independent of the applicant and of the applicant's solicitors (`the independent computer expert'). (b) Any search of a computer must be carried out only by the independent computer expert. (c) The independent computer expert may make a copy or digital copy of the computer hard drive and remove that copy or digital copy from the premises. (d) The independent computer expert may search the computer or the copy or digital copy of the computer hard drive at the premises and/or away from the premises for listed things and may copy the listed things electronically or in hard copy or both. (e) The independent computer expert must as soon as practicable and, in any event, prior to the hearing on the Return Date, deliver the copy or digital copy of the computer hard drive and all electronic and hard copies of listed things to the independent solicitor, together with a report of what the independent computer expert has done including a list of such electronic and hard copies. (f) The independent solicitor must, at or prior to the hearing on the Return Date, deliver to the Court all things received from the independent computer expert and serve a copy of the latter's report on the parties. (g) If no independent computer expert has been appointed, but the independent solicitor considers it necessary to remove a computer from the premises for safekeeping or for the purpose of copying its contents electronically and printing out information in documentary form, the independent solicitor may remove the computer from the premises for that purpose and cause that purpose to be achieved. 21. (a) Unless you are a corporation, you are entitled to object to paragraphs 20(b) to (f) on the ground that they might tend to incriminate you or make you liable to a civil penalty. (b) You are also entitled to object to paragraphs 20(b) to (f) on the ground that the computer contains material that is otherwise privileged. (c) Upon communicating any objection under paragraph (a) or (b) to the independent solicitor, paragraphs 20(b) to (f) become inoperative to the extent that you have objected to them. In that event, if the applicant's solicitor communicates to the independent solicitor that the applicant proposes to contest the objection: (i) the independent computer expert shall remove the computer hard drive (or, if that is not practicable, the computer) from the premises and deliver it into the custody of the independent solicitor who shall deliver it to the Court at or prior to the Return Date. (ii) on the Return Date or on another date, the applicant may apply to the Court for orders to similar effect as paragraphs 20(b) to (f) and if you object, the Court may adjudicate upon your objection. INSPECTION 22. Prior to the Return Date, you or your solicitor or representative shall be entitled, in the presence of the independent solicitor, to inspect any thing removed from the premises and to: (a) make copies of the same; and (b) provide the independent solicitor with a signed list of things which are claimed to be privileged or confidential and which you claim ought not to be inspected by the applicant. PROVISION OF INFORMATION 23. Subject to paragraph 24 below, you must: (a) at or before the further hearing on the Return Date (or within such further time as the Court may allow) to the best of your ability inform the applicant in writing as to: (i) the location of the listed things; (ii) the name and address of everyone who has supplied you, or offered to supply you, with any listed thing; (iii) the name and address of every person to whom you have supplied, or offered to supply, any listed thing; and (iv) details of the dates and quantities of every such supply and offer; (b) within 7 working days after being served with this order, make and serve on the applicant an affidavit setting out the above information, and annexing copies of all order forms, invoices, delivery notes, accounts, receipts and correspondence (including email correspondence) relating to the transactions referred to in sub-paragraph (a) above and which verifies that it sets out all such particulars known to each respondent and that all such documents have been so annexed. 24. (a) This paragraph (24) applies if you are not a corporation and you wish to object that compliance with paragraph 23 may tend to incriminate you or make you liable to a civil penalty. (b) This paragraph (24) also applies if you are a corporation and all of the persons who are able to comply with paragraph 23 on your behalf and with whom you have been able to communicate, wish to object that compliance may tend to incriminate them or make them liable to a civil penalty. (c) You must, at or before the further hearing on the Return Date (or within such further time as the Court may allow), notify the applicant in writing that you or all the persons referred to in (b) wish to take such objection and identify the extent of the objection. (d) If you give such notice, you need comply with paragraph 23 only to the extent, if any, that it is possible to do so without disclosure of the material in respect of which the objection is taken. (e) If you give such notice, the Court may give directions as to the filing and service of affidavits setting out such matters as you or the persons referred to in (b) wish to place before the Court in support of the objection. PROHIBITED ACTS 25. Except for the sole purpose of obtaining legal advice, you must not, until 4:30pm on the Return Date, directly or indirectly inform any person of this proceeding or of the contents of this order, or tell any person that a proceeding has been or may be brought against you by the applicant. 26. Until 4:30pm on the Return Date you must not destroy, tamper with, cancel or part with possession, power, custody or control of the listed things otherwise than in accordance with the terms of this order or further order of the Court. COSTS 27. The costs of this application are reserved to the Judge hearing the application on the Return Date. INTERLOCUTORY INJUNCTION 28. Up to and including 4:30pm on the Return Date or other time fixed by further order of the Court, you must not, whether by your servants, agents, or otherwise, do any of the following: (a) reproduce or authorise the reproduction of the whole or any substantial part of any Aristocrat Game Materials without the licence of the Applicant; (b) manufacture, assemble, sell, offer for sale, supply, offer to supply, distribute or import any Infringing Aristocrat Game Materials or any Gaming Machine which includes or incorporates any Infringing Aristocrat Game Materials; (c) authorise, direct or procure any other company or person to engage in the conduct described in (a) or (b) above. Schedule A Premises The premises located at: 18 Edman Close, Florey ACT 2615; and 22A Rickety Street, Mascot NSW 2020 including any vehicle or vehicles under a respondents' control on or about those premises. Listed Things (i) things which are, or appear to be, Infringing Aristocrat Game Materials; (ii) gaming machines, components for gaming machines, EPROMs, computers, computer hardware and other machines, any digital storage media including without limitation computer disks or diskettes, CD-ROMs or USB drives, computer programs, artwork panels, manuals, documents and similar articles which are, or appear to be, or to include or to incorporate, Infringing Aristocrat Game Materials; (iii) originals or copies of invoices, receipts, order forms, delivery notes, bank statements, correspondence or other documents or items which relate, or appear to relate to, the copying, assembly, acquisition, importation, purchase, sale, supply, distribution or to the proceeds of sale or distribution of Infringing Aristocrat Game Materials; (iv) equipment (including EPROM duplicators, CD-R copiers and other computer equipment) is or which appears to have been (or intended to be used for) making Infringing Aristocrat Games Materials; and (v) any electronically stored information (including, without limitation, emails) which relate or appear to relate to the copying, assembly, acquisition, importation, purchase, sale, supply or distribution or proceeds of sale of Infringing Aristocrat Game Materials. Search Party 1. The independent solicitors: (a) Alexandra Duchen, Level 60, Governor Phillip Tower, 1 Farrer Place, Sydney NSW 2000; and (b) Malcolm Brennan, Level 9 St George Centre, 60 Marcus Clarke Street, Canberra ACT 2601. 2. The applicant's solicitor or solicitors: (a) Robert Arnold, 50 Bridge Street, Sydney NSW 2000; (b) Elisabeth Coffey, 50 Bridge Street, Sydney NSW 2000; (c) Nathan Shepherd, 50 Bridge Street, Sydney NSW 2000; and (d) Melanie Howlett, 50 Bridge Street, Sydney NSW 2000. 3. Independent computer experts: Rodney David McKemmish and Jason Forsyth 4. Other members of the search party: Dieter Polaczek, Shaun Harrison, Marc Mayo and Malcolm Layton, employees of the applicant in the capacity of technical experts. Schedule B Undertakings given to the Court A. Undertakings given to the Court by the applicant: A1. The applicant undertakes 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) affected by the operation of the order. A2. The applicant will not, without leave of the Court, use any information, document or thing obtained as a result of the execution of this order for the purpose of any civil or criminal proceeding, either within or outside Australia, other than this proceeding. A3. The applicant will not inform any other person of the existence of this proceeding except for the purposes of this proceeding until after 4:30pm on the Return Date or other time fixed by further order of the Court. A4. The applicant will insure the things removed from the premises against loss or damage against fire or acccident under reasonable or usual terms for an amount that reasonably appears to the applicant to be their full value. A5. The applicant undertakes that employees of the applicant identified in paragraph 4 under the heading "Search Party" in Schedule A and any other employees of the applicant directed by the independent solicitor to assist in the removal of things from the premises, will be directed not to disclose to any other representatives of the applicant any information or the content of any document acquired during or as a result of the execution of this order without leave of the Court. B. Undertakings given to the Court by the applicant's solicitor B1. The applicant's solicitors will pay the reasonable costs and disbursements of the independent solicitor and of any independent computer expert. B2. The applicant's solicitor will provide to the independent solicitor for service on the respondent copies of the following documents: (a) this order; (b) the application for this order for hearing on the Return Date; (c) the following material in so far as it was relied on by the applicant at the hearing when the order was made: (i) affidavits (or draft affidavits) (ii) exhibits capable of being copied (other than confidential exhibits); (iii) any written submission; and (iv) any other document that was provided to the Court. (d) a transcript, or, if none is available, a note, of any exclusively oral allegation of fact that was made and of any exclusively oral submission that was put, to the Court; and (e) the originating process, or, if none was filed, any draft originating process produced to the Court. B3. The applicant's solicitor will answer to the best of his or her ability any question as to whether a particular thing is a listed thing. B4. The applicant's solicitor will use his or her best endeavours to act in conformity with the order and to ensure that the order is executed in a courteous and orderly manner and in a manner that minimises disruption to the respondent. B5. The applicant's solicitor will not, without leave of the Court, use any information, document or thing obtained as a result of the execution of this order for the purpose of any civil or criminal proceeding, either within or outside Australia, other than this proceeding. B6. The applicant's solicitor will not inform any other person of the existence of this proceeding except for the purposes of this proceeding until after 4:30pm on the Return Date, or other time fixed by further order of the Court. B7. The applicant's solicitor will not disclose to the applicant (other than members of the search party) any information that the solicitor acquires during or as a result of execution of the search order, without the leave of the Court. B8. The applicant's solicitor will use best endeavours to follow all directions of the independent solicitor. C. Undertakings given to the Court by the independent solicitor C1. The independent solicitor will use his or her best endeavours to serve the respondent with this order and the other documents referred to in undertaking B2 of the above undertakings by the applicant's solicitor or solicitors. C2. Before entering the premises, the independent solicitor will: (a) offer to explain the terms and effect of the search order to the person served with the order and, if the offer is accepted, do so; and (b) inform the respondent of his or her right to take legal advice. C3. Subject to undertaking C4 below, the independent solicitor will retain custody of all things removed from the premises by the independent solicitor pursuant to this order until delivery to the Court or further order of the Court. C4. At or before the hearing on the Return Date, the independent solicitor will provide a written report on the carrying out of the order to the Court and provide a copy to the applicant's solicitors and to the respondent or the respondent's solicitors. The report will attach a copy of any list made pursuant to the order and a copy of any report received from an independent computer expert. C5. The independent solicitor will use best endeavours to ensure that members of the search party act in conformity with the order and that the order is executed in a courteous and orderly manner and in a manner that minimises disruption to the respondent, and will give such reasonable directions to other members of the search party as are necessary or convenient for the execution of the order. C6. The independent solicitor will not, without leave of the Court, use any information, document or thing obtained as a result of the execution of this order for the purpose of any civil or criminal proceeding, either within or outside Australia, other than this proceeding. C7. The independent solicitor will not inform any other person of the existence of this proceeding except for the purposes of this proceeding until after 4:30pm on the Return Date, or other time fixed by further order of the Court. D. Undertakings given to the Court by the independent computer expert D1. The independent computer expert will use his or her best endeavours to act in conformity with the order and to ensure that the order, so far as it concerns the independent computer expert, is execute in a courteous and orderly manner and in a manner that minimises disruption to the respondent. D2. The independent computer expert will not, without leave of the Court, use any information, document or thing obtained as a result of the execution of this order for the purpose of any civil or criminal proceeding, either within or outside Australia, other than this proceeding. D3. The independent computer expert will not inform any other person of the existence of this proceeding except for the purposes of this proceeding until after 4:30pm on the Return Date. D4. The independent computer expert will use best endeavours to follow all directions of the independent solicitor. Schedule C Affidavits relied on Name of Deponent Date affidavit made 1. Heather Ann Tropman 30 June 2006 2. Garry David Coster 28 June 2006 3. Robert Anthony Arnold 30 June 2006 NAME AND ADDRESS OF APPLICANT'S SOLICITORS The Applicant's solicitors are: Baker & McKenzie Solicitors 50 Bridge Street Sydney NSW 2000 Tel: 9225 0200 Fax: 9225 1595 Schedule 1 Aristocrat Games 4 PLAY 5 DRAGONS 5:1 THE FIELD 50 LIONS 6 PACK 7's 9 LIVES A FISTFUL OF FREE GAMES ACE ACE IN THE HOLE ACE OF CLUBS ACES ACES II ACTION ACES ACTION PACKED ACTION REPLAY ACTION TIME ADONIS AFRICAN DUSK ALCHEMIST ALCHEMY ALOHA AMAZON AMAZON QUEEN ANTONY & CLEOPATRA APACHE GOLD ARABIAN NIGHTS ARCTIC WINS ARISHINKO ASTRONAUT ATLANTIS AUTUMN MOON AVALANCHE AZTEC CHIEF AZTEC GOLD AZTEC QUEEN BANKER (THE) BEAR ESSENTIALS BEST & FAIREST BETCHA BIG 5 (THE) BIG APPLE (THE) BIG BEN BIG CATS BIG DEAL BIG HEARTED BIG RED BIG TIME BIRD OF PARADISE BIZZY BEE BIZZY BEE II BJ BLITZ BLACKJACK BLACK BRUMBY BLACK PANTHER BLACK PEARL BLACK RHINO BLACKJACK BOB AND DOLLY BOBBY DAZZLER BONUS BONUS POKER BONUS WHEEL BOOKMAKER BOOMERANG BOOSTER BUCKS BOOT SCOOTIN' BRAZIL BRING HOME BACON BRONZED AUSSIE BUCCANEER BUMBLE BUGS BUMPER CATCH BUNGEE CHOOK BURNING DESIRE BUSHRANGER BUTTERFLY BUTTERFLY DELIGHT BUZZARD BUCKS CAESAR'S RANSOM CALYPSO CALYPSO KING CANYON ROSE CAPITAL BONUS CAPITAL GAIN CAPTAIN COMBO CARNIVAL CAROUSEL CASH CAROUSEL CASH CAT CASH CHAMELEON CASH CROP CASH FLOW CASH SPLASH CASHCADE CASHIER (THE) CASHMAN TONIGHT CASINO ROYALE CELTIC WARRIOR CENTRE STAGE CENTURION CHAIN REACTION CHAMPION CHARIOT CHALLENGE CHECKMATE CHICKEN CHIEFTAIN CHOY SUN DOA CLOCKWISE CLOWN BINGO COLOSSUS COME ALIVE CONQUEST COOL CASH CORAL RICHES CORAL RICHES II CORRIDA DE TOROS COSMIC CASH COUNTDOWN CRAZY BALLS CRAZY JOKER CRITTERS CRUSADER CRYSTAL SPRINGS CUCKOO CURRENCY MARKET DAILY DOUBLES DARK HORSE DELTA GOLD DELTA QUEEN DESERT BLOOM DESERT GOLD DIAMOND DOVE DIAMOND EYES DIAMOND FEVER DIAMOND TOUCH DIAMONDS & PEARLS DIAMONDS FOREVER DINOMIGHT DINOSAUR DIXIE DOLLAR ACTION DOLLAR DROP DOLLAR KING DOLLAR TREE DOLLARADO DOLLARS DOLPHIN TREASURE DOLPHIN TREASURE DELUXE DOUBLE ACTION DOUBLE ACTION 2 UP DOUBLE AGENT DOUBLE BARREL DOUBLE DEAL DOUBLE DECKER DOUBLE DOLPHINS DOUBLE FEATURE DOUBLE TAKE DOUBLE TIME DOUBLE UP DOUBLE WILD BAR DOUBLET DRAGON DRAGON LORD DRAGON'S EYE DRAW CARD DRAW POKER DREAM BOAT DREAM CATCHER DREAM WEAVER DUO DYNAMITE JACK EACH WAY INCAS EACH WAY NUDGER EAGLE ROCK EASY STREET EIGHT BALL EL DORADO EMERALD CITY EMPRESS ENCHANTED FOREST ENCHANTRESS ENDEAVOUR ENTERTAINER (THE) EXCALIBUR EXOTICA EXPLORER EXTRA 2 BALL BINGO EXTRA! EYES OF THE TIGER FABULOUS 4 FABULOUS 50'S FAIR GO FANCY FREE FANTASTIC FANTASY FORTUNE FAST FORTUNE FAVOURITE ONE FEVER PITCH FIND THE LADY FIRE DANCER FIREBALL FIVE LINE JACKPOT FIVE LINE SPECIAL FIVE REEL WINNER FLAME OF OLYMPUS FLAMING ARROW FLAMINGO FOLLOW THE STARS FORMULA ONE FORTUNE FORTUNE HUNTER FORTUNE TELLER FOUR REEL FUN FOUR REEL SPECIAL FOUR SCORE FOUR UP FREE BEE FREE BEE 5 cent FREE KICK FREE 'N EASY FREE THROW FREEWAY FRONTIER FULL HAND FUNMAKER GAMBLIN' JACK GAME WITH NO NAME! (THE) GATOR GOLD GEISHA GENGHIS KHAN GENIE GOLD GENIE MAGIC GI CLASSIC SPECIAL GNOME AROUND THE WORLD GO APE GO FOR GOLD GO FOR GREEN GODDESS OF LOVE GOLD A GO GO GOLD AWARD GOLD BULLION GOLD CUP GOLD FEVER GOLD GALLEON GOLD MEDAL GOLDEN APPLE GOLDEN ARCHER GOLDEN BOUNTY GOLDEN CANARIES GOLDEN CANARIES II (Lucky Devil) GOLDEN FLEECE (THE) GOLDEN GATE GOLDEN GONG (THE) GOLDEN GOOSE GOLDEN GOOSESPINS GOLDEN HARVEST GOLDEN INCAS GOLDEN POKER GOLDEN PYRAMIDS GOLDEN PYRAMIDS SPECIAL EDITION GOLDEN RA GOLDEN TOUCH GOLDMINE GOLDMINE II GONE TROPPO GOOD FORTUNE GRAND CHAMPION GRAND PRIX GRAND RAPIDS GRAND RAPIDS II GRAND SLAM GREEN & GOLD GREEN LIZARD HAPPY DAYS HAPPY GO LUCKY HARLEQUIN HARMONY HARVEST HARVEST FESTIVAL HARVEST TIME HAT TRICK HEART OF GOLD HEART THROB HEATWAVE HELEN OF TROY HI DOLLY HI FLYER HIGH CARD HIGH NOON HIGH SEAS HIGH STAKES HIGHLAND REEL HIT THE HEIGHTS HOLD YOUR HORSES HOLE IN ONE HOLIDAY HOLLYWOOD DREAMS HONEY BEE HONEY MONEY HONEY POT HONEYMOON HORIZON HOT $ HOT CANARY HOT CASH HOT REELS HOT SHOT HOUSE OF HEARTS HUMDINGER IDOL RICHES INCA CHIEF INCA GOLD INCA KING INCA MAGIC INCA RICHES INCA ROYAL INCA SUN INCA TREASURE INCA WARRIOR INDIAN CHIEF INDIAN DREAMING INDIAN DREAMING 2ND CHANCE INDIAN DREAMING II INDIAN GOLD (Mr Cashman) INDIAN PRINCESS IRISH DELIGHT ISLAND DELIGHT IT'S TIME JACK HIGH JACKPOT SPECIAL JAILBIRD (Mr. Cashman) JAILBREAK JAILHOUSE ROCK JESTER JOKER IS WILD (THE) JOKERS GALORE JOKERS GALORE II JOLLY GIANT JOLLY JOKER JUMBO 4 JUMBO JACKPOTS JUMPIN' JOEY'S JUMPING BEANS JUNGLE JUICE K. G. BIRD KAKADU DREAMING KARAT PATCH KEEP YOUR HAT ON KENTUCKY KENYAN GOLD KING GALAH KING NEPTUNE KING OF CLUBS KING OF THE NILE KING PENGUIN KING'S RANSOM KOALA MINT KOHINOOR MOUNTAIN OF LIGHT KOOKA BUCKS L.A. GATOR LADY LUCK LADY OF FORTUNE LET'S PARTY LIGHTNING LIGHTNING STRIKE ROULETTE LINE KING LION'S SHARE LOCO LOOT LONE STAR LONE WOLF LOONEY 7'S LOOSE GOOSE LORD LEOPARD LOUIE'S GOLD (Mr. Cashman) LOVE & MARRIAGE LOVE BIRDS LUCK OF THE IRISH LUCKY BUCKS LUCKY BUCKS II LUCKY BUG LUCKY CLOVER LUCKY DEVIL LUCKY STARS LUCKY STREAK LUCKY STRIKE LUCKY STRIKE II LUXURY LINES MAGIC KISS MAGIC MASK MAGIC TIME MAGIC TOUCH MAGICIAN (The) MAH JONG MAMMOTH MONEY MARGARITA MAGIC MARLIN MAGIC (Lady Luck) MATILDA MERCHANT BANKER MIDAS MILLIONS MIGHTY MONEY MINE MINE MINE MIRROR MONEY MONARCH MONEY EXPRESS MONEY MACHINE MONEY MAGIC MONEY MAGICIAN MONEY MAKER MONEY MOUSE MONEY OR THE BOX MONEY TREE MONKEY BUSINESS MOON FESTIVAL MOON FIRE MOONLIGHT MOROCCAN GOLD MOUNTAIN MONEY MR CASHMAN MYSTIC CHIEF MYSTIC EYES (Mr Cashman) MYSTIC FOREST MYSTIC GARDEN MYSTIC MERMAID MYSTIQUE NERDS GONE WILD! NITRO NELLIE NUDGER OASIS ODDS ON ODIN'S REIGN OLD GOLD ONE FOR ALL OPEN SESAME ORCHID MAGIC ORCHID MIST OSCAR OUTBACK JACK OVERS & UNDERS OWL CAPONE PARIS LIGHTS PARK LANE PAY DAY PEACOCK FLUTTER PEACOCK MAGIC PELICAN PETE PENGUIN PAYS PENGUIN PIRATE PENGUIN PIRATE II PESO PALACE PET SHOP PHANTOM PAYS PHANTOM PAYS CLASSIC PHARAOHS FORTUNE PHOENIX FANTASY PIECE OF CAKE PIRATES PLAYER'S CHOICE – Favourites PLAYER'S CHOICE – Original PLAYER'S CHOICE - Super PLUM CRAZY PLUS 4 POMPEII POW WOW POWDER KEG POWER PAY PRIDE OF AFRICA PRIZE FIGHT PROPHECY PROSPECTOR PROSPERITY PUNTER'S CHOICE PUNTER'S NUDGER PURE GOLD PUSHOVER PUTTING ON THE RITZ PYRAMID MAGIC PYRAMID POWER Q.T. BIRD QANTASTIC QUADREEL QUARTETTE QUEEN OF HEARTS QUEEN OF SHEBA QUEEN OF THE NILE QUEEN OF THE NILE DELUXE QUEEN OF THE NILE II QUEEN OF THE NILE SPECIAL EDITION QUEENS OF CASH QUINTETTE QUIZ NITE RACING GAME (THE) RAGTIME RAINBOW WARRIORS RAINBOWS END RAINDROPS RAMBLING ROSE RANDOM HARVEST RAPID JACKPOTS RAPID JACKPOTS II RAPID REWARD RAPID RICHES RAWHIDE REBEL YELL RED BARON REEL POWER REEL WINNER REELIN 'N ROCKIN RETURN OF THE SAMURAI RICH RIVER RIVERBOAT KING RIVERBOAT QUEEN RODEO ROLL UP! ROLL UP! ROMAN HOLIDAY ROULETTE – LIGHTNING STRIKE ROUTE 66 ROYAL ASCOT ROYAL BOUNTY ROYAL MINT ROYAL WINNA RUBY MAGIC RUSHIN' ROOSTER SAFARI SAMURAI SCATTER MAGIC SCATTER MAGIC II SCATTER MAGIC III SCATTER ROOS SCATTERBRAIN SCRATCH 'n MATCH SEAL THE DEAL SEVEN UP SHARP SHOOTER SHOW ME THE MONEY SHOWBOAT GAMBLER SHOWBOAT SPECIAL SHOWDOWN SILK ROAD SILVER & GOLD SILVER CLOUD SILVER FALLS SILVER FLEET(Megastar) SILVER FOX SILVER STREAK SILVER WOLF SIX REEL WINNER SKY RAIDER SNAP SHOT SNOWBALL SNOWCAT SOLID GOLD SPIN A FORTUNE SPORTING CHANCE GAMES SPRING CARNIVAL SPUN GOLD ST. MORITZ STABLE MATES STABLEMATES STAR ATTRACTION STAR DRIFTER STAR QUEST STARDUST STARLITE STOOGES STOP THE CLOCK STRAIGHT ACE STRIKE A LIGHT STRIKE ME LUCKY SUEPR BUCKS IV SUGAR & SPICE SUMO SPINS SUN CHIEF SUN KING SUN QUEEN SUNDANCER SUNSET PARADISE (Mr. Cashman) SUPER BLACK PEARL SUPER BUCKS SUPER BUCKS II SUPER BUCKS III SUPER BUCKS V SUPER GOLD AWARD SUPER GOOSE SUPER HERO SUPER JACKPOTS SUPER QUADREEL SUPER QUARTETTE SUPER QUINTETTE SUPER RAPIDS SUPER SCATTEROOS SUPER SLOTS SUPER STAR SUPER TRIPLE 7'S SUPER TWO UP SURE SHOT SURF SUN FUN SURPRIZE SWEET & SOUR SWEET DREAMS SWEET REWARD SWEET SUCCESS SWEETHEARTS SWEETHEARTS II SWEETHEARTS II (Lucky Devil) SWELL SURPRISE SYSTEM 7 TAKE FIVE TALENT SCOUT TARTAN TREASURE TEMPTATION TEQUILA SUNRISE THAI PRINCESS THE ORIGINAL INDIAN DREAMING THE ORIGINAL QUEEN OF THE NILE THOR THREE BAGS FULL THREE COINS IN A FOUNTAIN THREE LINE 2 UP THREE WAY WIN THREEE UP THUNDER HEART TIC TAC TOE TIKI TORCH TOP 10 TOP BANANA TOP BRASS TOP BUCK TOP DOLLAR TOP FORM TOP GEAR TOP GOLD AWARD TOP KNOT TOP SCORE TOP SHOT TOP SPOT TORCH OF THE GODS TOSS UP TOTEM TOUCAN TANGO TOUCH OF GOLD TOUCH OF PARADICE TREASURE TREASURE (THE) TREASURE ISLAND TREASURE TROVE TRICK OR TREAT TRIGGER HAPPY TRIPLE EAGLE TRIPLE JOKERS TRIPLE PAYS TRIPLE POWER TRIPLE TREAT TRIPLET TROJAN HORSE TROPICAL DELIGHT TRUMPS TWIN NUDGER TWO BOB TWO FOR ONE TWO UP TWO UP DOLLAR UNICORN DREAMING VENETIAN NIGHTS VENICE VENUS VIKING QUEST WAY TO GO WEE LASSIE WHACKO WHALES OF CASH WHERE'S THE GOLD WHITE TIGER WHITE TIGER CLASSIC WHITE TIGER II (Lucky Devil) WICKED WINNINGS WILD (THE) WILD ACES WILD AFRICA WILD AMAZON WILD AMAZON II WILD ANGELS WILD BALL BINGO WILD BILL WILD CAT WILD COUGAR WILD COUNTRY WILD COYOTE WILD FIRE WILD FLOWERS WILD GOOSE WILD HEARTS WILD LIFE WILD ONE WILD PANTHER WILD PEACOCK WILD STAR WILD THING WILD WAYS WILD WEST WIN WIN MILLS WIN STORM WINDMILLS WINGS OVER OLYMPUS WINNER WINNER'S CHEQUE WINNERS CIRCLE WINNING POST WINNING STREAK WINNING WAYS WISHBONE WIZARD WIZARD MISSING WIZARD WAYS WONDER WHEELS WONDERWORLD WORKERS SPECIAL WUNDERBIRD YUKON GOLD ZORRO ZORRO II ZORRO UNMASK IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 1271 of 2006 BETWEEN: ARISTOCRAT TECHNOLOGIES AUSTRALIA PTY LIMITED APPLICANT AND: GLOBAL GAMING PTY LIMITED FIRST RESPONDENT ANTHONY EDWARD ANDREWS SECOND RESPONDENT JUDGE: ALLSOP J DATE: 30 JUNE 2006 PLACE: SYDNEY REASONS FOR JUDGMENT 1 On reading the affidavits of Heather Ann Tropman, Gary David Coster and Robert Anthony Arnold, and hearing counsel, I am, subject to comments I make in a moment, satisfied that it is appropriate to make orders in the form amended and initialled by me, being based on the power expressly provided for in Order 25B of the Federal Court Rules and dealt with by way of practice note 24 dealing with search orders. 2 The requirements for the grant of the search order set out in Order 25B rule 3 require that the applicant show that it has a strong prima facie case on an accrued cause of action. 3 I am satisfied on the level of ex parte relief that there is a strong prima facie case on an accrued cause of action in relation to what appeared to be counterfeited goods or goods that breach copyright, being gambling machines, their artwork and associated computer software which appear to have been sold to parties in Peru by at least the first respondent, such transactions involving the second respondent in 2002. There is an explanation in the material as to why this has not been discovered which it is unnecessary to recount. 4 There is material which links the named respondents, though not in a conclusive way in terms of breach of copyright, to various parties who have been found to have breached the same species of copyright in the past in the manufacture and sale of gaming machines, copyright of which is owned by the applicant. 5 I am satisfied, at this level of analysis, that it is likely that the applicant will be able to show its copyright in relation to its gaming machines and the associated aspects of them. 6 There is an issue that may be ventilated in due course as to the necessity for the search to be closely related to the accrued cause of action. I think the better reading of O 25B, and not having had the assistance of opposing counsel, is the one put to me by Mr Cobden that the flexibility and amplitude of O 25B r 3 would be undermined if one read the search order as limited to the precise cause of action known. 7 Very often a wide number of apparent breaches are evident in these sorts of cases. It is not, however, the practice that I am aware of either in this Court, in this country or overseas in like jurisdictions, to limit the terms of the order to searching for and seizing only documents or material directly related to the precise causes of action known. Such a course would tend to make the utility of this procedure doubtful. It is not a procedure lightly to be invoked. Nevertheless, if appropriate foundation is laid for it, it should not be so framed as to make its utilisation overly complex and technical. 8 In those circumstances, I am prepared to make the orders sought with the limitation that one finds on the search in the definition of "Listed Things" in Schedule A. Appropriate provision according to the practice note has been made for independent solicitors and an independent computer expert. I have varied the usual practice note form to allow some participation by employees of the applicant in circumstances of close supervision by the independent solicitor and the computer expert. 9 I have also granted an interlocutory injunction in terms of paragraph 28 of the order up to and including 4.30 pm on the return date. Given the matters that have been proved, I accept Mr Cobden's submissions that this is appropriate. 10 The return date will be 5 July 2006, and the matter will be listed before Rares J, the Duty Judge on that day, at 9.30 am. 11 I have already made an order to the extent that it is appropriate and necessary to Auscript, to take all steps practicable to have the transcript of discussion of counsel this afternoon and my short reasons available by 9 am on Monday, 3 July 2006 so that they can be served. 12 I permit and direct Auscript to release the transcript of the judgment before settling in final form by myself in chambers. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop. Associate: Dated: 17 July 2006 Counsel for the Applicant: Mr R Cobden SC Solicitor for the Applicant: Baker & McKenzie Date of Hearing: 30 June 2006 Date of Judgment: 30 June 2006