Foxtel Management Pty Limited v The Mod Shop Pty Limited [2007] FCA 463

Foxtel Management Pty Limited v The Mod Shop Pty Limited [2007] FCA 463

The court found that the Mod Shop companies, Mr Haddad, Mr Kolker, and Mr Kelly were liable as joint tortfeasors under s 135AN of the Copyright Act 1968 (Cth) for dealing in and facilitating use of broadcast decoding devices (pirated smartcards, card sharing hardware/software) to gain unauthorised access to Foxtel broadcasts. Mr Haddad and Mr Kolker organised, directed, and procured the conduct. Advertisements published by the Mod Shop companies and Mr Haddad were misleading in breach of s 52 of the Trade Practices Act and s 10 of the Fair Trading Act. Compensatory and additional damages were awarded; Mr Kolker’s liability for damages was confined to his period of active involvement....

Parties
First Applicant: Foxtel Management Pty Limited; Second Applicant: Foxtel Cable Television Pty Limited; First Respondent: The Mod Shop Pty Limited; Second Respondent: The Mod Shop Belmont Pty Limited; Third Respondent: The Mod Shop Innaloo Pty Limited; Fourth Respondent: The Mod Shop Palmyra Pty Limited; Fifth Respondent: Fouad Haddad (also known as 'Phillip Haddad'); Sixth Respondent: Tracy Leanne Haddad; Seventh Respondent: Jamilee Haddad; Eighth Respondent: Yuri Kolker; Ninth Respondent: Keenan Kelly (also known as 'James Benda'); Tenth Respondent: Craig Anthony Wall
Jurisdiction
Australia
Judgment Date
28 March 2007
Procedural Posture
Civil / Trial Judgment
Outcome
Applicants substantially successful. Mod Shop companies, Mr Haddad, and Mr Kolker liable for compensatory and additional damages; injunctive relief granted against Mr Haddad, Mr Kolker and Mr Kelly; claims under s 135ANA and for inducing breach of contract dismissed.
Legal Topics
Copyright Infringement, Signal Piracy, Statutory Torts, Misleading or Deceptive Conduct, Joint Tortfeasance, Damages, Liability of Directors, Breach of Contract
Intellectual Property Trade Practices Copyright Infringement Signal Piracy Statutory Torts Misleading or Deceptive Conduct Joint Tortfeasance Damages +2 more

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Parties

Foxtel Management Pty Limited

First Applicant

Foxtel Cable Television Pty Limited

Second Applicant

The Mod Shop Pty Limited

First Respondent

The Mod Shop Belmont Pty Limited

Second Respondent

The Mod Shop Innaloo Pty Limited

Third Respondent

The Mod Shop Palmyra Pty Limited

Fourth Respondent

Fouad Haddad (also known as 'Phillip Haddad')

Fifth Respondent

Tracy Leanne Haddad

Sixth Respondent

Jamilee Haddad

Seventh Respondent

Yuri Kolker

Eighth Respondent

Keenan Kelly (also known as 'James Benda')

Ninth Respondent

Craig Anthony Wall

Tenth Respondent

Procedural Posture

Civil / Trial Judgment

Legal Issues

  1. 1 Whether respondents engaged in actionable conduct under s 135AN and s 135ANA of the Copyright Act 1968 (Cth)
  2. 2 Whether corporate officers are personally liable for actionable conduct of the company
  3. 3 Whether sale and advertisement of certain devices constitutes sale of 'broadcast decoding devices'

Ratio Decidendi

The court found that the Mod Shop companies, Mr Haddad, Mr Kolker, and Mr Kelly were liable as joint tortfeasors under s 135AN of the Copyright Act 1968 (Cth) for dealing in and facilitating use of broadcast decoding devices (pirated smartcards, card sharing hardware/software) to gain unauthorised access to Foxtel broadcasts. Mr Haddad and Mr Kolker organised, directed, and procured the conduct. Advertisements published by the Mod Shop companies and Mr Haddad were misleading in breach of s 52 of the Trade Practices Act and s 10 of the Fair Trading Act. Compensatory and additional damages were awarded; Mr Kolker’s liability for damages was confined to his period of active involvement....

Court Disposition

Applicants substantially successful. Mod Shop companies, Mr Haddad, and Mr Kolker liable for compensatory and additional damages; injunctive relief granted against Mr Haddad, Mr Kolker and Mr Kelly; claims under s 135ANA and for inducing breach of contract dismissed.

Orders

  • The hearing is adjourned to a date to be fixed for the making of orders and the determination of costs.
  • Declarations and injunctive relief to be granted against Mr Haddad, Mr Kolker, and Mr Kelly as specified.