FEDERAL COURT OF AUSTRALIA Aristocrat Technologies Australia Pty Ltd v Global Gaming Supplies Pty Ltd [2007] FCA 1964 COSTS – Motion for injunction to restrain the fifth respondent from having contact with officers of the applicants, following gratuitous abuse meted out in a chance encounter in a city bar. No question of contempt by abuse of parties who were concerned in the current proceedings. Motion dismissed by consent upon the giving of an undertaking to the Court. Held: applicants ordered to pay the fifth respondent's costs of the Motion Sony Entertainment (Australia) Ltd v Smith (2005) 64 IPR 18 Raymond v Honey (1983) 1 AC 1 Australian Builders Construction Employees and Builders' Labourers' Federation v Commonwealth of Australia (1981) 37 ALR 470 ARISTROCRAT TECHNOLOGIES AUSTRALIA PTY LTD (ACN 001 660 715), ARISTOCRAT INTERNATIONAL PTY LIMITED (ACN 000 148 158) AND ARISTROCRAT TECHNOLOGIES INC v GLOBAL GAMING SUPPLIES PTY LTD (ACN 008 548 589), ANTHONY EDWARD ANDREWS, IMPACT GAMING PTY LTD (ACN 109 299 461), TONITA ENTERPRISE PTY LTD (ACN 120 737 402), FRANCIS GEORGE BERNARD CRAGEN AND RIAD ALLAM NSD 1271 OF 2006 GRAHAM J 22 NOVEMBER 2007 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 1271 OF 2006 BETWEEN: ARISTROCRAT TECHNOLOGIES AUSTRALIA PTY LTD (ACN 001 660 715) First Applicant ARISTOCRAT INTERNATIONAL PTY LIMITED (ACN 000 148 158) Second Applicant ARISTROCRAT TECHNOLOGIES INC Third Applicant AND: GLOBAL GAMING SUPPLIES PTY LTD (ACN 008 548 589) First Respondent ANTHONY EDWARD ANDREWS Second Respondent IMPACT GAMING PTY LTD (ACN 109 299 461) Third Respondent TONITA ENTERPRISE PTY LTD (ACN 120 737 402) Fourth Respondent FRANCIS GEORGE BERNARD CRAGEN Fifth Respondent RIAD ALLAM Sixth Respondent JUDGE: GRAHAM J DATE OF ORDER: 22 NOVEMBER 2007 WHERE MADE: SYDNEY UPON THE FIFTH RESPONDENT BY HIS SOLICITOR GIVING TO THE COURT AN UNDERTAKING WITHOUT ADMISSION THAT UNTIL THE DETERMINATION OF THE PROCEEDING HE WILL NOT, WHETHER BY HIMSELF, HIS SERVANTS, AGENTS OR OTHERWISE, APPROACH OR COMMUNICATE DIRECTLY WITH THE APPLICANTS' EMPLOYEES STEPHEN PARKER OR PETER GARDNER, THE COURT ORDERS: 1. That the applicants' Notice of Motion filed 14 November 2007 be dismissed. THE COURT ORDERS THAT: 2. The applicants pay the fifth respondent's costs of the Notice of Motion filed 14 November 2007. 3. The costs may be taxed and shall be payable forthwith. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 1271 OF 2006 BETWEEN: ARISTROCRAT TECHNOLOGIES AUSTRALIA PTY LTD (ACN 001 660 715) First Applicant ARISTOCRAT INTERNATIONAL PTY LIMITED (ACN 000 148 158) Second Applicant ARISTROCRAT TECHNOLOGIES INC Third Applicant AND: GLOBAL GAMING SUPPLIES PTY LTD (ACN 008 548 589) First Respondent ANTHONY EDWARD ANDREWS Second Respondent IMPACT GAMING PTY LTD (ACN 109 299 461) Third Respondent TONITA ENTERPRISE PTY LTD (ACN 120 737 402) Fourth Respondent FRANCIS GEORGE BERNARD CRAGEN Fifth Respondent RIAD ALLAM Sixth Respondent JUDGE: GRAHAM J DATE: 22 NOVEMBER 2007 PLACE: SYDNEY REASONS FOR JUDGMENT 1 In 2006 the applicants instituted proceedings against the parties who are now the first and second respondents in the proceedings. On 30 January 2007 the applicants instituted proceedings against the parties who are now the third, fourth, fifth and sixth respondents in the proceedings. The proceedings are listed before Jacobson J. My understanding is that on 15 June 2007 his Honour made an order the effect of which was to provide for the consolidation of the two sets of proceedings. 2 The proceedings as presently constituted were the subject of a Consolidated Application filed 2 July 2007 and a Consolidated Statement of Claim filed 2 July 2007. The Consolidated Application seeks relief in respect of alleged infringements of various sections of the Copyright Act 1968 (Cth), a section of the Trade Marks Act 1995 (Cth) and relief pursuant to ss 80, 82 and 87 of the Trade Practices Act 1974 (Cth) in relation to alleged contraventions of ss 52 and 53 of the Trade Practices Act 1974 (Cth). 3 The fifth respondent is Francis George Bernard Cragen, who is apparently the principal director of the third respondent, Impact Gaming Pty Limited. 4 On 21 August 2007 an exhibition was held at the Sydney Convention and Exhibition Centre at Darling Harbour in Sydney. The exhibition was apparently known as the Australasian Gaming Expo, which I presume to be an exhibition in respect of products in the gaming industry, such as poker machines. The applicants are, as I understand it, manufacturers of such machines and the third respondent is, as I understand it, involved in the business of repairing and supplying parts for gaming machines and making second-hand gaming machines available for sale. 5 I have been interrupted by senior counsel for the applicants to indicate that I need not be expansive in relation to the reasons for the costs order that I propose to make as it is not the intention, at least of the applicants or of the fifth respondent, to seek to challenge whatever order I may see fit to make in respect of costs, by way of appeal. In the circumstances I will be brief but I will say a little more about the matter. 6 A chance encounter occurred when two officers of the applicants ran into the fifth respondent in a hotel at Darling Harbour near to the Sydney Convention and Exhibition Centre on 21 August 2007. It is plain beyond argument that the fifth respondent did not pursue the two officers of the applicants whose names were Stephen Parker, sometimes referred to as Steven Parker, and Peter Gardner. The fifth respondent was in the company of a small number of people at the time the incident occurred. 7 In the space of five minutes an incident took place when Mr Gardner and Mr Parker happened into the bar where the fifth respondent was already standing drinking with the people who were with him. When the parties were some distance removed from one another the fifth respondent spoke in a derogatory manner of Mr Parker using words to the effect 'Parker, you little f…c…, you bastard, what are you doing to me?' That was Mr Gardner's recollection of the communication. Mr Parker's recollection of it was in these terms – according to Mr Parker the fifth respondent said, 'You can f… off. You are nothing but a f…c… Go away.' 8 The applicants have filed a Notice of Motion seeking injunctive relief against the fifth respondent restraining him, whether by himself, his servants, agents or otherwise, from approaching or communicating directly with the applicants or their non-legal representatives, including their employees. 9 Before the motion was filed, but more than a month after the incident, a request was made for an undertaking by the fifth respondent not to have contact with the applicants' employees. I will not go into the chain of correspondence in any detail beyond indicating that the fifth respondent viewed the applicants' demands as being unwarranted and proffered undertakings which were not acceptable to the applicants in their terms. 10 Upon the motion coming before the Court today the fifth respondent sought an adjournment of the motion. Following a short adjournment an accommodation was reached between the applicants and the fifth respondent as to the manner in which the motion should be disposed of. An undertaking was given to the Court by the fifth respondent and on the basis of that undertaking the Notice of Motion was, by consent, dismissed leaving for determination the question of costs. 11 Each party has sought an order that the other pay the costs. It seems to me that it would be inappropriate to make any order for costs against the fifth respondent unless it could be demonstrated that there was some basis upon which the court would have, in the exercise of its discretion, ordered relief of the kind sought. 12 I was taken by senior counsel for the applicants to an instance where Jacobson J granted this type of relief in Sony Entertainment (Australia) Ltd v Smith (2005) 64 IPR 18. The conduct there complained of was conduct by a Mr Smith, who made direct approaches to officers of one of the applicants over a period of time on 8 and 9 August 2002 which his Honour described as the sending of a series of threatening SMS messages. A further order was made in respect of similar conduct in relation to another party. 13 It is said by the applicants that the conduct complained of was in the nature of contempt of court and that it was appropriate for threatened contempt to be the subject of restraint by injunctive relief. Reliance was placed upon a passage from Lord Wilberforce's speech in Raymond v Honey (1983) 1 AC 1 at page 10 where his Lordship said, 'any act done which is calculated to obstruct or interfere with the due course of justice, or the lawful process of the courts, is a contempt of court.' The principle only needs to be stated for it to be apparent that it has no application whatsoever to the circumstances of this case. It could hardly be said that the abuse meted out by Mr Cragen from a distance to Mr Parker on his arrival at the bar and a demand that he go away could be seen to be calculated to obstruct or interfere with the due course of justice. 14 I have also been referred by senior counsel for the applicants to the judgment of Deane J in a decision of the Full Court of this Court in Australian Builders Construction Employees and Builders' Labourers' Federation v Commonwealth of Australia (1981) 37 ALR 470, with which Bowen CJ agreed and Evatt J expressed his general agreement. In that judgment (at 474) his Honour identified three categories of contempt, one of which was contempt in 'abusing parties who are concerned in causes'. 15 It seems to me that the remark passed in the chance encounter in the bar could not answer the description of such a contempt. The presence of Mr Parker and Mr Gardner in the bar was not as parties to a case or in any way related to the presentation or preparation of the case. A different outcome may well follow if one was concerned with (say) abuse of a litigant by another litigant in an elevator on the way to a level in the Law Courts Building where a case concerning the parties was about to commence. 16 Had I been called upon to deal with this matter on the merits I would have had great difficulty in granting relief such as has been offered by the fifth respondent. Indeed, I would not have been disposed to grant any relief at all on the material to which my attention has been directed. It seems to me that the threats against the fifth respondent and the letters demanding undertakings from him have been unwarranted and he is entitled to his costs of the motion. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham. Associate: Dated: 10 December 2007 Counsel for the Applicants: R Cobden SC Solicitor for the Applicants: Gilbert + Tobin Solicitor for the Fifth Respondent: P D Bard of Strategy Legal The First, Second, Third, Fourth and Sixth Respondents did not appear on the hearing of the motion. Date of Hearing: 22 November 2007 Date of Judgment: 22 November 2007