Prosperity Group International Pty Ltd ACN 110 539 636 v Intellectual Properties Opportunities Pacific Pty Ltd ACN 130 769 578 [2009] FCA 403

FEDERAL COURT OF AUSTRALIA

Prosperity Group International Pty Ltd ACN 110 539 636 v Intellectual Properties Opportunities Pacific Pty Ltd ACN 130 769 578 [2009] FCA 403

PRACTICE AND PROCEDURE - consideration of an application pursuant to s 31A of the Federal Court of Australia Act 1976 on the part of an applicant for judgment INTELLECTUAL PROPERTY – consideration of an application for judgment under s 31A as aforesaid in respect of a claim for infringement of the copyright subsisting in a literary work comprising text descriptive of the services of the applicant and reproduced on a website by the respondents Federal Court of Australia Act 1976, s 31A Copyright Act 1968 (Cth), ss 10, 14, 22, 29, 31, 32, 36, 115 and 116 Hocking v Bell(1945) 71 CLR 430 - cited Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd (2007) 236 ALR 720 - cited Jefferson Ford Pty Ltd v Ford Motor Co. of Australia Ltd (2008) 246 ALR 465 - cited Vans, Inc. v Offprice.Com.Au Pty Ltd [2006] FCA 137 - cited White Industries Aust. Ltd v Federal Commissioner of Taxation (2007) 160 FCR 298 - cited PROSPERITY GROUP INTERNATIONAL PTY LTD ACN 110 539 636 v INTELLECTUAL PROPERTIES OPPORTUNITIES PACIFIC PTY LTD ACN 130 769 578 and PAUL MICHAEL DRABSCH

QUD33 of 2009

GREENWOOD J

27 APRIL 2009

BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY QUD33 of 2009

BETWEEN: PROSPERITY GROUP INTERNATIONAL PTY LTD

ACN 110 539 636

Applicant

AND: INTELLECTUAL PROPERTIES OPPORTUNITIES PACIFIC PTY LTD ACN 130 769 578

First Respondent

PAUL MICHAEL DRABSCH

Second Respondent

JUDGE: GREENWOOD J

DATE OF ORDER: 27 APRIL 2009

WHERE MADE: BRISBANE

THE COURT ORDERS THAT:

1. The first respondent and second respondent are restrained from infringing the applicant's copyright subsisting in a document described as "Copyright Material" in a schedule to the application filed on 29 January 2009 and described as "Marketing Material" in Schedule A to the statement of claim filed on 29 January 2009 (described in these orders as "the Copyright Work") by reproducing (including by way of publication upon a website) or authorising the reproduction of the Copyright Work or a substantial part of the Copyright Work, without the licence of the applicant. 2. An account be taken of the profits derived by the first respondent and second respondent as a result of the infringement of copyright in the Copyright Work. 3. The first respondent and second respondent pay to the applicant such profits determined upon the taking of accounts, together with interest thereon pursuant to s 51A of the Federal Court of Australia Act 1976. 4. The first respondent, by Paul Drabsch, make, file in the Federal Court of Australia and serve on the solicitors for the applicant on or before the expiration of one month after the making of this order, an affidavit setting out in respect of the business named "I.P.O. Pacific" and operated by the first respondent or formerly operated by the first respondent whether by Paul Drabsch or by him together with others, the total number of clients of the first respondent to whom services described by the first respondent's website were provided, the nature of the services so provided to those clients and a schedule setting out the revenue derived from those clients and the costs and expenses incurred in deriving that revenue. 5. The first respondent on or before the expiration of one month after making this order, make, file in the Federal Court of Australia and serve upon the solicitors for the applicant an affidavit setting out a list of documents which relate to the services provided by the first respondent to its clients and those documents relied upon by the first respondent in formulating the schedule of revenue, costs and expenses derived and incurred by the first respondent as required by order 4, and the respondents shall permit the applicant to inspect such documents identified by the affidavit at a time and place agreed between the parties. 6. The first respondent by Paul Drabsch make, file in the Federal Court of Australia and serve on the solicitors for the applicant, an affidavit identifying the number of copies of any material which contains a substantial part of the Copyright Work which are in the possession, custody or power of the first respondent or Paul Drabsch and such copies be delivered up to the solicitors for the applicant, and Paul Drabsch shall identify in that affidavit any website established by him or the first respondent or anyone on their behalf or either of them which hosts in electronic form any reproduction of a substantial part of the Copyright Work. 7. The respondents pay the applicant's costs of and incidental to the proceeding. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using eSearch on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA