FEDERAL COURT OF AUSTRALIA TV Plus Broadcasting Company Pty Limited v United Broadcasting International Pty Limited [2012] FCA 565 Citation: TV Plus Broadcasting Company Pty Limited v United Broadcasting International Pty Limited [2012] FCA 565 Parties: TV PLUS BROADCASTING COMPANY PTY LIMITED (ACN 112 571 329) and TV PLUS INT PTY LIMITED (ACN 110 467 975) v UNITED BROADCASTING INTERNATIONAL PTY LIMITED (ACN 110 092 049) and MEDIA SYSTEM GMBH File number: VID 479 of 2010 Judge: BROMBERG J Date of judgment: 17 May 2012 Catchwords: COPYRIGHT – s 119(a) and 115(2) of the Copyright Act 1968 (Cth) – interlocutory injunction to restrain rebroadcasting of foreign television and radio channels – whether prima facie case established – whether balance of convenience favours grant of injunction – injunction granted. CORPORATIONS – s 440D(1)(b) of the Corporations Act 2001(Cth) – leave to proceed on appointment of administrator. Legislation: Copyright Act 1968 (Cth) ss 119(a), 115(2) Corporations Act 2001 (Cth) Part 5.3A, ss 436A(1)(a), 435C(1)(a), 440D(1)(b) Cases cited: Pioneer Watertanks (Australia 94) Pty Ltd v Delat Pty Ltd (1997) 25 ACSR 757 Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57 Date of hearing: 17 May 2012 Place: Melbourne Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 17 Counsel for the First and Second Applicants: Mr E Heerey Solicitor for the First and Second Applicants: Middletons Counsel for the First Respondent: Mr T Cordiner Solicitor for the First Respondent: Corrs Chambers Westgarth Counsel for the Second Respondent: Mr H Forrester Solicitor for the Second Respondent: Belleli King & Associates IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 479 of 2010 BETWEEN: TV PLUS BROADCASTING COMPANY PTY LIMITED (ACN 112 571 329) First Applicant TV PLUS INT PTY LIMITED (ACN 110 467 975) Second Applicant AND: UNITED BROADCASTING INTERNATIONAL PTY LIMITED (ACN 110 092 049) First Respondent MEDIA SYSTEM GMBH Second Respondent JUDGE: BROMBERG J DATE OF ORDER: 17 MAY 2012 WHERE MADE: MELBOURNE THE COURT NOTES THAT: A. The applicants undertake: a. 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, adversely affected by the operation of the interlocutory order or undertaking or any continuation (with or without variation) thereof; and b. to pay the compensation referred to in paragraph Aa above to the person there referred to. B. John Jeremic, a director of each of the applicants, personally guarantees the applicants' undertakings in paragraph A above. THE COURT ORDERS THAT: 1. Until trial or further order, the first respondent, whether by itself, its servants, employees, agents or otherwise howsoever be restrained from broadcasting in Australia the television channels of the second respondent currently known as PINK PLUS, PINK EXTRA, PINK FILM, PINK MUSIC and PINK FOLK and all radio channels of the second respondent including RADIO PINK. 2. Costs of today be reserved. 3. The applicants' interlocutory application dated 18 April 2012 be otherwise dismissed. 4. The proceeding be otherwise stayed until further order. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 479 of 2010 BETWEEN: TV PLUS BROADCASTING COMPANY PTY LIMITED (ACN 112 571 329) First Applicant TV PLUS INT PTY LIMITED (ACN 110 467 975) Second Applicant AND: UNITED BROADCASTING INTERNATIONAL PTY LIMITED (ACN 110 092 049) First Respondent MEDIA SYSTEM GMBH Second Respondent JUDGE: BROMBERG J DATE: 17 MAY 2012 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 The applicants ("TV Plus"), and the first respondent ("UBI"), each operate businesses which rebroadcast to their subscribing customers foreign television and radio channels. The second respondent ("MSG"), is the licensor outside of Serbia of certain Serbian language channels known as, and described in the relief sought by TV Plus, as the Pink Channels ("the Pink Channels"). 2 The proceeding has a long history and it is not necessary that I recount it other than for those matters pertinent to the current application before the Court. 3 By its interlocutory application dated 18 April 2012, TV Plus sought interlocutory injunctions that UBI be restrained from: (a) broadcasting in Australia the Pink Channels; and (b) representing in the course of trade or commerce: (i) that UBI is licensed to broadcast the Pink Channels in Australia; or (ii) that TV Plus is not licensed to broadcast the Pink Channels in Australia. 4 Paragraph (b) of the relief sought is no longer pressed. 5 Both TV Plus and MSG contend that by way of a licence agreement made between them on 23 March 2012, TV Plus holds an exclusive licence to rebroadcast the Pink Channels in Australia. Relying upon that licence and ss 119(a) and 115(2) of the Copyright Act 1968 (Cth) ("the Copyright Act"), TV Plus contends that UBI should be restrained from broadcasting the Pink Channels. 6 Until this morning, UBI had resisted the interlocutory relief sought. At 9.10 am this morning, Martin John Green of BRI Ferrier (NSW) Pty Ltd ("the Administrator"), was appointed pursuant to s 436A(1)(a) of the Corporations Act 2001 (Cth) ("the Corporations Act") as the administrator of UBI. By operation of s 435C(1)(a), the administration of UBI commenced at 9.10 am this morning. 7 When the application was called on at 10.15 am, Mr Cordiner of counsel appeared instructed by the Administrator on behalf of UBI. Mr Cordiner drew the Court's attention to s 440D(1)(b) of the Corporations Act, which would relevantly stay this proceeding, unless the Court granted leave to TV Plus to proceed. 8 Mr Cordiner informed the Court that UBI neither opposed nor consented to: (i) the grant of leave pursuant to s 440D(1)(b) of the Corporations Act; and (ii) the grant of the interlocutory relief sought by TV Plus. 9 Mr Cordiner further informed the Court that UBI sought to have no further involvement and asked for the Court's leave to withdraw. 10 I determined that, in the circumstances, the Court should adjourn to 2.15 pm in order to allow the Administrator time to consider the position of UBI. Upon resumption, Mr Cordiner reiterated, in essence, what he had informed the Court earlier in the morning. He said also that he had been instructed that, unless restrained, UBI would continue to broadcast the Pink Channels and continue their passive promotion. 11 Pursuant to s 440D(1)(b) of the Corporations Act, I granted TV Plus leave to proceed confined to its application for interlocutory relief dated 18 April 2012. I did so largely relying upon the reasoning of Carr J in Pioneer Watertanks (Australia 94) Pty Ltd v Delat Pty Ltd (1997) 25 ACSR 757 at pages 759 to 762. I considered that TV Plus had demonstrated a disadvantage that it would suffer if leave were not granted, which outweighed any disadvantage to UBI, bearing in mind the objects of the statutory scheme in Part 5.3A of the Corporations Act. 12 In determining an application for an interlocutory injunction, the Court needs to address itself to two enquiries. Firstly, whether the applicant has made out a prima facie case in the sense that if the evidence remains as it is, there is a probability that at the trial of the action, the applicant will be held entitled to relief. Secondly, whether the inconvenience or injury which the applicant would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the respondent would suffer if an injunction were granted: Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57 at [65] (Gummow and Hayne JJ). 13 I am satisfied to the requisite standard on the material before the Court that TV Plus has, since 23 March 2012, held an exclusive licence to rebroadcast within Australia the Pink Channels. I am also satisfied that at various times since 23 March 2012, UBI has rebroadcast the Pink Channels to consumers who have subscribed to its provision of Serbian language packages. I am also satisfied that UBI's rebroadcasting continues. The evidence before me is that it was continuing as at 1.30 pm today. I take into account also the information provided to the Court by Mr Cordiner that UBI will continue to rebroadcast the Pink Channels unless restrained. 14 On the material before the Court, there is no arguable case that: (i) TV Plus does not have an exclusive licence to rebroadcast the Pink Channels in Australia; and (ii) that UBI has any legal right to rebroadcast the Pink Channels in Australia. 15 I am satisfied a prima facie case is established. I am also satisfied, on the material before the Court, that the balance of convenience overwhelmingly supports the grant of the relief sought by TV Plus. 16 For those reasons, I will make orders including that UBI be restrained from further broadcasting the Pink Channels. 17 The orders will note that TV Plus has given an undertaking as to damages, including a personal guarantee from John Jeremic, the sole director of TV Plus. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromberg. Associate: Dated: 31 May 2012