TIME TO REGROUP: Lessons for practitioners and punters alike  


Re. Group Pty Ltd v Kazal (No 3) [2017] FCA 754

While many of you were enjoying a Winter break last week, Justice Perram of the Federal Court of Australia made an interesting interlocutory decision   It concerned a “no case to answer” submission made at the conclusion of proceedings for contempt of court. While this sounds technical (and it is) the factual circumstances are worth highlighting.

Facts

The dispute related to a website maintained by the Respondent which made certain statements about the Second Applicant and featured a photo of him.   In December 2016, the applicants sought an interlocutory injunction alleging (amongst other things) that copyright in the photograph was being infringed.

On 6 December 2016 Griffiths J made a series of interim orders. Orders 2 and 4 concerned the allegation of copyright infringement. Order 4 required that the photograph be removed from the website within 48 hours and Order 2 that the Respondent be restrained from using the photo “in any way that would infringe the copyright in those photographs without first obtaining the permission or licence of the owner of the copyright in those photographs”.

The orders were not followed and so the Applicants commenced proceedings for contempt of court.

Issues

The application for contempt in relation to Order was challenged on the grounds involved impermissible cross referencing.  A related point was that the concept of infringement was, itself, quite complex and hence what Order 2 required was not sufficiently clear. It was also claimed that it might be difficult work out who the licence of the copyright towner was.

Decision

Perram J rejected all challenges to Order 2. In doing so, he noted that the Respondent had been content to provide an undertaking in the form of Order 2 and so it was not open to him to argue that the action required was uncertain.  He also rejected the second objection on the basis that it did not relate to the form of the order but the drafting of the exception in the Copyright Act.

In considering the question of ambiguity, Perram J noted at para 39 

“It is therefore always a question of context.  The degree of judgment involved in assessing whether it is ‘daylight’ is fairly minimal and unlikely to generate reasonable disputation.  An injunction to stop a respondent holding parties at which bad music is played too loudly falls, no doubt, on the other side of the line.”

Comment

This decision offers something for both punters and practitioners.

Punters: Be sure you have cleared content you are using on your website.

Practitioners:: Inelegant pleadings will not necessarily be ambiguous.  

The decision is available here https://jade.io/article/540051