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

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

The evidence established a serious question to be tried that the Defendants' promotional material was misleading or deceptive, and supported continuing the publication-related restraints. However, because the offending material had been withdrawn, the parties had not had a sufficient opportunity to adduce evidence, and the Plaintiff's undertaking as to damages required further assurance, the balance of convenience did not justify restraining ticket sales until final hearing; the ticket sales restraint was continued only until 5.00 pm on 19 November 2009.

Jurisdiction
Australia
Judgment Date
09 November 2009
Procedural Posture
Procedural and Other Ruling Concerning Interlocutory Injunctions for Alleged Misleading or Deceptive Conduct / Application to Continue Ex Parte Mandatory and Negative Injunctions
Outcome
Orders continued in part until further order and in part until 5.00 pm on 19 November 2009; matter stood over; costs reserved.
Legal Topics
['misleading or Deceptive Conduct' 'interlocutory Injunction' 'ex Parte Injunction' 'balance of Convenience' 'undertaking as to Damages' 'ticket Sales Restraint']
['trade Practices' 'equity' 'injunctions'] ['misleading or Deceptive Conduct' 'interlocutory Injunction' 'ex Parte Injunction' 'balance of Convenience' 'undertaking as to Damages' 'ticket Sales Restraint']

Case Brief

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Procedural Posture

Procedural and Other Ruling Concerning Interlocutory Injunctions for Alleged Misleading or Deceptive Conduct / Application to Continue Ex Parte Mandatory and Negative Injunctions

Legal Issues

  1. 1 ['Whether there was a serious question to be tried that the Defendants breached s 52 of the Trade Practices Act 1974 (Cth) by disseminating promotional material capable of leading the public to believe named riders would perform in the Crusty Demons Tour.' 'Whether the balance of convenience supported continuing orders requiring withdrawal and non-publication of the media release.' 'Whether the balance of convenience supported continuing the restraint on ticket sales until final determination or only until a contested interlocutory hearing.' "Whether the Plaintiff's undertaking as to damages was adequate to support continuation of the ticket sales injunction beyond 19 November 2009."]

Ratio Decidendi

The evidence established a serious question to be tried that the Defendants' promotional material was misleading or deceptive, and supported continuing the publication-related restraints. However, because the offending material had been withdrawn, the parties had not had a sufficient opportunity to adduce evidence, and the Plaintiff's undertaking as to damages required further assurance, the balance of convenience did not justify restraining ticket sales until final hearing; the ticket sales restraint was continued only until 5.00 pm on 19 November 2009.

Court Disposition

Orders continued in part until further order and in part until 5.00 pm on 19 November 2009; matter stood over; costs reserved.

Orders

  • ['Upon the Plaintiff through its Senior Counsel giving the usual undertaking as to damages, paragraphs 1.1 and 1.2 of the orders made on 6 November 2009 were extended until further order.' 'Paragraph 1.3 of the orders made on 6 November 2009 was extended up to 5.00 pm on 19 November 2009.' "The matter was stood over...