Flashback Holdings Pty Limited v Showtime DVD Holdings Pty Ltd (No 3) [2009] FCA 308

Flashback Holdings Pty Limited v Showtime DVD Holdings Pty Ltd (No 3) [2009] FCA 308

The proposed copyright-owner parties should be joined because the applicant had given considerable thought to the identity of the copyright owner, confirmation agreements supported the asserted chain of title, the proposed parties had participated in those agreements, and there was no evidence at this stage that the applicant was wrong. Although the first and third respondents had seriously failed to comply with prior orders, including in relation to the asset affidavit and discovery, those matters did not yet justify striking out their defences; instead, a rapid and strict timetable with default consequences was appropriate.

Jurisdiction
Australia
Judgment Date
13 March 2009
Procedural Posture
Copyright Infringement Proceeding Concerning Importation and Sale of Children's Dvds / Interlocutory Motions for Joinder, Amendment, Strike Out of Defences, Discovery and Procedural Directions
Outcome
Leave to join additional parties and amend was granted; the first and third respondents' defences were not immediately struck out but strict timetable and default judgment consequences were imposed; the first and third respondents' motion filed 11 March 2009 was dismissed with no order as to costs.
Legal Topics
['joinder of Copyright Owners' 'amendment of Application and Statement of Claim' 'strike Out of Defences for Non Compliance With Court Orders' 'discovery' 'procedural Timetable' 'indemnity Costs']
['intellectual Property' 'copyright' 'civil Procedure'] ['joinder of Copyright Owners' 'amendment of Application and Statement of Claim' 'strike Out of Defences for Non Compliance With Court Orders' 'discovery' 'procedural Timetable' 'indemnity Costs']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Copyright Infringement Proceeding Concerning Importation and Sale of Children's Dvds / Interlocutory Motions for Joinder, Amendment, Strike Out of Defences, Discovery and Procedural Directions

Legal Issues

  1. 1 ['Whether Gaiam Inc, Gaiam Americas Inc, GT Holdings Inc and Jaffa Road LIV Limited Partnership should be joined to the proceeding as copyright owners.' 'Whether the applicant should have leave to file and serve an amended application and amended statement of claim.' "Whether the first and third respondents' defences should be struck out for failures to comply with prior court orders." 'What procedural timetable and consequences for default should be imposed.']

Ratio Decidendi

The proposed copyright-owner parties should be joined because the applicant had given considerable thought to the identity of the copyright owner, confirmation agreements supported the asserted chain of title, the proposed parties had participated in those agreements, and there was no evidence at this stage that the applicant was wrong. Although the first and third respondents had seriously failed to comply with prior orders, including in relation to the asset affidavit and discovery, those matters did not yet justify striking out their defences; instead, a rapid and strict timetable with default consequences was appropriate.

Court Disposition

Leave to join additional parties and amend was granted; the first and third respondents' defences were not immediately struck out but strict timetable and default judgment consequences were imposed; the first and third respondents' motion filed 11 March 2009 was dismissed with no order as to costs.

Orders

  • ['Leave be granted to the applicant to join Gaiam Inc, Gaiam Americas Inc, GT Holdings Inc and Jaffa Road LIV Limited Partnership to the proceeding.' 'Leave be granted to the applicant to file and serve an amended application and an amended statement of claim in the form proposed during the hearing with such filing...