FEDERAL COURT OF AUSTRALIA Campbell v Zeiher [2009] FCA 423 Copyright Act 1968 (Cth) Trade Practices Act 1974 (Cth) Federal Court Rules O 5 r 11 Fair Trading Act 1987 (NSW) Australian Broadcasting Commission v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 Australian Broadcasting Commission v O'Neill (2006) 227 CLR 57 Prior v Sheldon (2000) FCA 438; 48 IPR 301 Seven Network (Operations) Ltd v TCN Channel Nine Pty Ltd (2005) 146 FCR 183 GEOFFREY VINCENT CAMPBELL v FELICITY ZEIHER and RUKUS INDUSTRIES PTY LTD NSD 344 of 2009 BUCHANAN J 28 APRIL 2009 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 344 of 2009 BETWEEN: GEOFFREY VINCENT CAMPBELL Applicant AND: FELICITY ZEIHER First Respondent RUKUS INDUSTRIES PTY LTD Second Respondent JUDGE: BUCHANAN J DATE OF ORDER: 28 APRIL 2009 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. Up to and including 11 May 2009 or further earlier order, the respondents and each of them, whether by themselves, their servants or agents or otherwise, be restrained from doing any of the following acts without the prior written consent of the applicant: (a) publishing the literary work which is in, or is substantially in, the form of a book or book draft, and which is known to the respondents as "The Milperra Massacre – the True Story – through the eyes of Snake" (that literary work is hereafter referred to as the "Book"); (b) publishing a substantial part of, or any adaptation of, the Book; (c) communicating the Book to the public (whether by way of internet transmission or otherwise); (d) communicating a substantial part of, or any adaptation of, the Book, to the public (whether by way of internet transmission or otherwise); (e) publishing a substantial part of, or any adaptation of, the literary work embodied in the exercise books which are referred to in paragraphs 5 and 6 of the affidavit of Geoffrey Vincent Campbell sworn 22 April 2009 and parts of which are exhibited to that affidavit as Exhibit GVC-1 (that literary work is hereafter referred to as the "Underlying Notes"); (f) publishing a substantial part of, or any adaptation of, the Underlying Notes; and (g) communicating a substantial part of, or any adaptation of, the Underlying Notes to the public (whether by way of internet transmission or otherwise). 2. Up to and including 11 May 2009 or further earlier order, the respondents and each of them, whether by their servants, agents or otherwise be restrained from: (a) making, without first obtaining the written approval of the applicant in relation to the contents of the Book (or any part, version or adaptation thereof), any express or implied representations in trade or commerce to the following effect: (i) that the story in the Book (or any part, version, or adaptation thereof) is written from the perspective of the applicant; (ii) that the Book or its contents (or any part, version, or adaptation thereof) is or are the story of the applicant; (iii) that the Book or its contents (or any part, version or adaptation thereof) is or are authorised or endorsed by the applicant. (b) making any representation to the effect that the first respondent is the only author of the Book (or any part, version or adaptation thereof). 3. Pursuant to O 15 r 11 of the Federal Court Rules, on or before 5 May 2009, the respondents produce for inspection at the offices of the applicant's solicitors the book which, as at 22 April 2009, was advertised on the website www.milperramassacre.com.au. 4. Liberty is reserved to the parties to apply on 12 hours notice. 5. In the absence of the first respondent, these orders may be served on the respondents by affixing them to the front door of Unit 1, 6-8 Francis Street, Cambridge Park. 6. Costs are reserved. 7. The proceedings are adjourned to 9.30 am on Monday, 11 May 2009 before Graham J. 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 NEW SOUTH WALES DISTRICT REGISTRY NSD 344 of 2009 BETWEEN: GEOFFREY VINCENT CAMPBELL Applicant AND: FELICITY ZEIHER First Respondent RUKUS INDUSTRIES PTY LTD Second Respondent JUDGE: BUCHANAN J DATE: 28 APRIL 2009 PLACE: SYDNEY REASONS FOR JUDGMENT BUCHANAN J: 1 On 22 April 2009 Perram J, sitting as the duty judge, granted leave to the applicant to file the application commencing the present proceedings supported by an affidavit sworn by him on that day. Time for service was abridged to 5 pm the following day and the matter was made returnable before me as duty judge for the purpose of dealing with an application for urgent interlocutory relief. 2 When proceedings were commenced this morning I granted leave to file in court an affidavit of service sworn by Margerita Anne Kulikovskis sworn on 24 April 2009. Ms Kulikovskis deposed to going to the premises occupied by the first respondent, which is also the registered office of the second respondent, at Unit 1, 6-8 Francis Street, Cambridge Park, speaking to the first respondent and informing her that the respondents were being served with material consisting of the application, the affidavit in support, 18 exhibits, GVC-1 to 18, and a copy of the orders made by Perram J on 22 April 2009. 3 This morning there was no appearance for either of the respondents and the application has been heard ex parte. For the purpose of dealing with the application for interlocutory relief, I must assume that the applicant will make out the essential facts advanced in support of the application. The questions for present attention are whether on those facts a prima facie case has been established for the grant of final relief and whether the balance of convenience favours the grant of such relief. 4 The term prima facie case is used in this context to indicate that it is necessary to show a sufficient likelihood of success to justify preservation of the status quo pending trial rather than that it is more probable than not that the case will succeed (see Australian Broadcasting Commission v O'Neill (2006) 227 CLR 57). 5 In his affidavit in support of the application Mr Campbell deposed to the fact that he was a founding member of the Bandidos Motorcycle Club ("the Bandidos") and that at the 1984 "Milperra Massacre" was shot with three of his brothers. His brothers died as a result of their injuries. About 10 years later he decided to make some record of his childhood memories with his brothers, and of the circumstances and events whereby they came to join the Comancheros Motorcycle Club and later the Bandidos. 6 By 2005 he had filled about three exercise books. He began to look for assistance to write a book. In 2005 he met the first respondent. Over the years that followed they cooperated in the preparation of various manuscripts, although Mr Campbell made it clear in his affidavit that he was never finally satisfied with any particular version. According to Mr Campbell, the first respondent has appropriated the material upon which they collaborated and has given interviews announcing that she is the author of a book entitled "Milperra Massacre – Through the Eyes of Snake" which is to be released by the second respondent on 1 May 2009. It appears from company searches exhibited to Mr Campbell at the time he swore his affidavit that the first respondent is the sole shareholder and director of the second respondent, which has as its registered office the address at which the first respondent resides. The book, Mr Campbell says, has been advertised using photographs which are his property and which are being used without his permission. 7 The relief which is to be sought in the final proceedings is relief under the Copyright Act 1968 (Cth), the Trade Practices Act 1974 (Cth), the Fair Trading Act 1987 (NSW) and for breach of contract. Mr Campbell asserts that he is, with the first respondent, the joint author of the manuscript which she is proposing to release and the joint owner of copyright in that manuscript. He claims to be the sole owner of copyright in the notes which were used to prepare the manuscript and in the photographs which are to be used in association with it. The remedies to be sought in the final proceedings include remedies restraining publication of the book, or a substantial part of it, or any adaptation of it or communicating it to the public. Although damages are also sought it appears to me at the present time that the orders for restraint are the primary relief which are to be sought. In Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199, the High Court drew attention to the necessity to identify legal or equitable rights that are to be determined at the trial and in respect of which final relief is sought. I am satisfied that in the present case the relief which is to be sought at the trial includes relief in the nature of restraint of publication and of particular kinds of misrepresentation, as well as, to the extent relevant, claims for damages. 8 During the course of submissions this morning my attention was very properly drawn to the fact that one commentary, at least, raises a doubt about whether a co-owner may, in accordance with s 36 of the Copyright Act 1968 (Cth), withhold consent from another co-owner to publication. However, in Prior v Sheldon [2000] FCA 438; 48 IPR 301 Wilcox J (at [79]) stated clearly that: "… s 36 must be read as indicating it is an infringement of the copyright of a joint owner of copyright in a work for a person to do or authorise an act comprised in the copyright without the license of that joint owner." even if the infringer is the co-owner of the copyright. That passage was applied by Lindgren J as a member of a Full Court in Seven Network (Operations) Ltd v TCN Channel Nine Pty Ltd (2005) 146 FCR 183 at [20]. 9 I am satisfied that in the present case there is a prime facie case for attention by the court that the conduct proposed by the respondents will infringe the applicant's copyright either as owner or co-owner in a number of respects, namely: his copyright in what are described as the underlying notes to the publication, that is the notes which he made in the three exercise books to which he referred in his affidavit; his copyright interest in the manuscript of the book which the respondents propose to publish; and his copyright interest in the photographs which will be used either in the book or in association with it. 10 I am also satisfied that there is a prime facie case that the respondents propose to make representations about the manuscript and its authorship that may be misleading or deceptive. 11 It is not necessary for me, at the moment, to consider whether or not there is a prima facie case in relation to breach of contract because no restraint directed to such a possibility would add to the interlocutory restraint which is otherwise justified at the moment. 12 I am also satisfied that the balance of convenience justifies at least some limited restraint upon the respondents until the matter can receive the attention of the judge to whose docket the application has been assigned. Mr Kunc, who appeared today with Mr Flynn, has given the usual undertaking as to damages on the part of the applicant. I will therefore make orders in part in the form of the short minutes of order which were handed up during submissions. 13 An order for inspection has also been sought to the effect that the respondents produce for inspection, at the offices of the applicant's solicitors, the book which as at 22 April 2009 was advertised on the first respondent's website. Inspection is sought on or before 5 May 2009. In the circumstances it appears to me to be reasonable and without any relevant prejudice to the respondents for that book to be produced for inspection before the matter returns to the docket judge for directions on 11 May 2009. 14 Costs of the interlocutory application were also sought but it is not sufficiently clear at the moment that the respondents have unreasonably failed to make any response to correspondence said to have been sent to them. In the circumstances the appropriate course is that costs be reserved. 15 Liberty to apply on 12 hours notice has been sought. Such liberty will be granted. 16 Although I am satisfied that some temporary restraint is necessary, it does not appear to me to be necessary that such restraint endure beyond the time when the matter will receive attention by the docket judge. It will accordingly be limited to restraint up to and including 11 May 2009 or earlier further order of the Court. 17 The affidavit of service sworn by Ms Kulikovskis deposed that the first respondent refused to accept to service on her own behalf or on behalf of the second respondent as a result of which it was necessary to leave the documents at her feet in the doorway of her premises. An order has been sought permitting service in the absence of the first respondent by affixing documents to the door of her premises. In the circumstances, and for the purpose of service of the orders made today, I will permit service in that fashion if necessary. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan. Associate: Dated: 5 May 2009 Solicitor for the Applicant: A R Walmsley & Co Solicitors Counsel for the Applicant: Mr F Kunc SC and Mr P W Flynn The Respondents did not appear Date of Hearing: 28 April 2009 Date of Judgment: 28 April 2009