Nitro Circus Touring Aust Pty Ltd v Fleshwound Films LLC & Anor [2009] NSWSC 1214

New South Wales Supreme Court

CITATION : Nitro Circus Touring Aust Pty Ltd v Fleshwound Films LLC & Anor [2009] NSWSC 1214

HEARING DATE(S) : 9 November 2009

JUDGMENT DATE : 9 November 2009

JURISDICTION : Equity Division

JUDGMENT OF : Palmer J

EX TEMPORE JUDGMENT DATE : 9 November 2009

DECISION : Orders continued until 19 November 2009.

CATCHWORDS : MISLEADING OR DECEPTIVE CONDUCT – INJUNCTION – whether ex parte mandatory and negative injunctions should be continued.

LEGISLATION CITED : Trade Practices Act 1974 (Cth) – s 52

CATEGORY : Procedural and other rulings

Nitro Circus Touring Australia Pty Ltd (Plaintiff) PARTIES : Fleshwound Films LLC (First Defendant) Dainty Consolidated Entertainment Pty Ltd (Second Defendant)

FILE NUMBER(S) : SC 5242/09

R.J. Weber SC (Plaintiff) COUNSEL : S.G. Burley SC, Ms P. Arcus (First Defendant) F.M. Douglas QC, W. Edwards (Second Defendant)

Allens Arthur Robinson (Plaintiff) SOLICITORS : Dibbs Barker (Sydney Agent for Davies Collison Cave) (First Defendant) Herbert Geer (Second Defendant)

5242/09 Nitro Circus Touring Aust P/L v Fleshwound Films LLC & Anor

JUDGMENT – Ex tempore

9 November, 2009

1 The Plaintiff ("NCTA") is the promoter of a motocross bike show known as "Nitro Circus Live Tour" which will be performed in all mainland capital cities of Australia in May and June 2010. 2 The First Defendant ("FF") apparently owns the intellectual property in a brand name called "Crusty Demons" or "Crusty". The Second Defendant ("DCE") is an entertainment promoter. The Defendants have arranged and have begun to promote a motocross bike show known as "Crusty Demons Thirst 4 Destruction" which will be performed in the same venues as the Plaintiff's show, also in May and June 2010. 3 On 6 November 2009, the Plaintiff obtained an ex parte mandatory injunction and orders against the Defendants directing them to withdraw what it says are misleading and deceptive advertisements for the Crusty Demons Tour. The alleged breaches of s 52 of the Trade Practices Act 1974 (Cth) are that a media release distributed by the Defendants to ticketing agencies, advertising agencies and media outlets states that named motocross riders, said to be the best in the world, will be performing in the Crusty Demons Tour when, in fact, none of the named riders is contracted to FF or DCE to perform and, indeed, all or most of them have indicated to NCTA that they do not intend to perform in the Crusty Demons Tour. 4 The mandatory injunction required FF to remove immediately from its website the media release which specified the names of the riders in question. FF has complied with this order. 5 The orders also required both Defendants to direct ticketing agencies, advertising agencies and media outlets to which the media release had been forwarded not to publish that release. The Defendants were also required to direct ticketing agencies not to sell or offer for sale tickets for the Crusty Demons Tour up to 9 November. The proceedings have now come back into the Duty List. 6 NCTA seeks a continuation of the orders up to final hearing. FF and DCE oppose continuation of the order preventing ticket sales, although they would consent on an interlocutory basis to a continuation of the first two orders made on 6 November. 7 The evidence in support of the application comprises an affidavit of the director of the NCTA, Mr Porra. The evidence put forward by FF and DCE in opposition is: