Geocentric Outdoors Pty Ltd v Nothin But Shorts (International) Pty Ltd [2021] FCA 1535

Federal Court of Australia

Geocentric Outdoors Pty Ltd v Nothin But Shorts (International) Pty Ltd [2021] FCA 1535 File number(s): QUD 383 of 2020

Judgment of: GREENWOOD J

Date of judgment: 7 December 2021

Catchwords: INTELLECTUAL PROPERTY – consideration of an application by the applicant in the principal proceedings for judgment under s 31A(1)(b) of the Federal Court of Australia Act 1976 (Cth) in relation to a claim for damages to be assessed under s 115(2) of the Copyright Act 1968 (Cth), taking into account a claim for additional damages under s 115(4) of that Act and a claim for a final injunction

Legislation: Federal Court of Australia Act 1976 (Cth), s 31A(1) Copyright Act 1968 (Cth), s 115(2), (4)

Division: General Division

Registry: Queensland

National Practice Area: Intellectual Property

Sub-area: Copyright and Industrial Designs

Number of paragraphs: 35

Date of hearing: 23 November 2021

Solicitor for the Applicant: ENTLAWCO

Counsel for the Respondent: Leave granted to the respondent to appear by its director, Mr Anthony Gordon

ORDERS QUD 383 of 2020

BETWEEN: GEOCENTRIC OUTDOORS PTY LTD (ACN 619 240 952) Applicant

AND: NOTHIN BUT SHORTS (INTERNATIONAL) PTY LTD (ACN 134 999 483) Respondent

order made by: GREENWOOD J DATE OF ORDER: 7 DECEMBER 2021

THE COURT ORDERS THAT:

1. The respondent is restrained whether by itself, its employees, agents, officers or otherwise howsoever, from exercising, or purporting to exercise, any rights comprised in the copyright subsisting by virtue of the Copyright Act 1968 (Cth) (the "Act") in subject matter described in an agreement between the applicant and the respondent dated 14 July 2011 (the "Agreement") as "all motion content rights" related to "TV rights" as defined in the agreement including "all video content" originated for the purpose of either: (a) National (Australian) and International television broadcast of events described as the "Action Racing World Series" ("ARWS") events; or (b) for the purpose of delivery online and distribution by smart phone and android devices of the ARWS events; or (c) both, (otherwise described as "the material"). 2. The respondent is restrained whether by itself, its employees, agents, officers or otherwise howsoever from exercising any rights comprised in the copyright subsisting in the material without the consent of the applicant. 3. Judgment be entered against the respondent for damages under s 115(2) of the Act to be assessed concerning each infringement of the applicant's copyright in the material, by an inquiry as to each infringing act and the loss said to be caused to the applicant by each such act and such assessment shall have regard to whether additional damages for the purposes of s 115(4) of the Act are to form part of the assessment of damages upon such an inquiry. 4. The respondent file and serve by Friday, 28 January 2022, an affidavit identifying: (a) all documents (whether in electronic or physical format) in the possession, power or control of the respondent related to any contract, arrangement or understanding with any person or entity (whether constituted by an exchange of letters or emails or set out in a document) concerning any aspect of the video content or the material (as described in Order 1 in each case) concerning the period from 14 July 2011 to the date of these orders; and (b) all documents in the possession, power or control of the respondent (whether in electronic or physical format) evidencing or relating to any transaction by which the respondent received any monies directly or indirectly related to the video content or the material as described in Order 1 including, but not limited to, documents such as bank statements, account details into which money has been paid and end of financial year accounts (including balance sheets and profit and loss statements). 5. To the extent that Mr Anthony Gordon as the guiding mind of the respondent and the decision-maker on behalf of the respondent, has in his possession, power or control any document (whether in electronic or physical format) related to any contract arrangement or understanding howsoever made with any person or entity concerning any aspect of the video content or the material (as described in Order 1) concerning the period from 14 July 2011 to the date of these orders, Mr Gordon is to file and serve by Friday, 28 January 2022, an affidavit identifying any and all such documents. 6. To the extent that Mr Anthony Gordon as the guiding mind of the respondent and the decision-maker on behalf of the respondent, has in his possession, power or control any document (whether in electronic or physical format) evidencing or relating to any transaction by which any person or entity paid any monies to Mr Gordon or at the direction of Mr Gordon to any other entity or person related, directly or indirectly, to the video content or the material as described in Order 1 concerning the period from 14 July 2011 to the date of these orders, Mr Gordon is to file and serve by Friday, 28 January 2022, an affidavit identifying any and all such documents. 7. The respondent pay the costs of and incidental to the application. 8. The costs of the proceeding other than the costs of and incidental to the application are reserved for later determination. 9. Pursuant to s 23 and s 37P of the Federal Court of Australia Act 1976 (Cth), rule 1.32 and rule 1.36 of the Federal Court Rules 2011, these orders and the reasons for judgment in support of these orders are made and published from Chambers. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.