Aristocrat Technologies Australia Pty Ltd v Global Gaming Pty Limited [2006] FCA 862

FEDERAL COURT OF AUSTRALIA

PRACTICE AND PROCEDURE – Search order - Order 25B Federal Court Rules – Practice Note 24 – whether strong prima facie case on accrued cause of action

ARISTOCRAT TECHNOLOGIES AUSTRALIA PTY LIMITED v GLOBAL GAMING PTY LIMITED AND ANOR

NSD 1271 of 2006

ALLSOP J

30 JUNE 2006

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1271 of 2006

BETWEEN:	ARISTOCRAT TECHNOLOGIES AUSTRALIA PTY LIMITED APPLICANT
AND:	GLOBAL GAMING PTY LIMITED FIRST RESPONDENT ANTHONY EDWARD ANDREWS SECOND RESPONDENT
JUDGE:	ALLSOP J
DATE OF ORDER:	30 JUNE 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

PENAL NOTICE

TO: Global Gaming Supplies Pty Ltd

TO: Anthony Edward Andrews

IF YOU (BEING A PERSON BOUND BY THIS ORDER):

(A) REFUSE OR NEGLECT TO DO ANY ACT WITHIN THE TIME SPECIFIED IN THE ORDER FOR THE DOING OF THE ACT; OR

(B) DISOBEY THE ORDER BY DOING AN ACT WHICH THE ORDER REQUIRES YOU TO ABSTAIN FROM DOING,

YOU WILL BE LIABLE TO IMPRISONMENT, SEQUESTRATION OF PROPERTY OR OTHER PUNISHMENT.

ANY OTHER PERSON WHO KNOWS OF THIS ORDER AND DOES ANYTHING WHICH HELPS OR PERMITS YOU TO BREACH THE TERMS OF THIS ORDER MAY BE SIMILARLY PUNISHED.

TO: Global Gaming Supplies Pty Ltd

Anthony Edward Andrews

This is a 'search order' made against you on 30 June 2006 by Justice Allsop at a hearing without notice to you after the Court was given the undertakings set out in Schedule B to this order and after the Court read the affidavits listed in Schedule C to this order.

THE COURT ORDERS:

INTRODUCTION

1. (a) the application for this order is made returnable immediately.

(b) the time for service of the application, supporting affidavits and originating process is abridged and service is to be effected by 2pm on 4 July 2006.

2. Subject to the next paragraph, this order has effect up to and including 5 July 2006 ('the Return Date'). On the Return Date at 9.30am there will be a further hearing in respect of this order before Justice Rares.

3. You may apply to the Court at any time to vary or discharge this order, including, if necessary, by telephone to the judge referred to in the immediately preceding paragraph (phone No. (02) 9230 8491) or to the Duty Judge (through the security desk phone No. (02) 9230 8000 or (02) 9230 8025).

4. This order may be served only between 9:00am and 2:00pm on a business day.

5. In this order:

(d) 'independent computer expert' means each of the persons identified as independent computer experts in the search party referred to in Schedule A to this order.

(e) 'independent solicitor' means each of the persons identified as independent solicitors in the search party referred to in Schedule A to this order.

(f) 'listed thing' means any thing referred to in Schedule A to this order.

(g) 'premises' means any and each of the premises identified in Schedule A to this order, including any vehicles and vessels that are under the respondent's control on or about the premises or that are otherwise identified in Schedule A.

(h) 'search party' means the persons identified or described as constituting the search party in Schedule A to this order.

(i) 'thing' includes a document.

(j) 'you', where there is more than one of you, includes all of you and includes you if you are a corporation.

(k) Aristocrat Artwork means the artwork depicted on the insert panels of any Aristocrat Gaming Machines or the reel strips of any Aristocrat Games.

(l) Aristocrat EPROMs means EPROMs onto which have been burnt Aristocrat Game Software with the licence of the Applicant.

(m) Aristocrat Games means the Games listed in Schedule 1.

(n) Aristocrat Game Materials means Aristocrat Artwork, Aristocrat EPROMs and Aristocrat Game Software.

(o) Aristocrat Gaming Machines means Gaming Machines on which Aristocrat Games have been installed.

(p) Aristocrat Game Software means the computer programs and associated literary works created for the purpose of being installed on Gaming Machines for the playing of Aristocrat Games.

(q) Game means an electronic game for use or an electronic gaming machine.

(r) Gaming Machine means a cabinet, display unit, machine or other device on which Games are installed.

(s) Infringing Aristocrat Game Materials means any artwork, EPROM or software (including any associated literary work) reproducing the whole or a substantial part of any Aristocrat Artwork, Aristocrat EPROM or Aristocrat Game Software, that is made without the licence of the Applicant,

(t) any requirement that something be done in your presence means:

(A) in the presence of you or of one of the persons described in (6) below; or

(B) if there is more than one of you, in the presence of each of you, or, in relation to each of you, in the presence of one of the persons described in (6) below.

6. This order must be complied with by you by:

(a) yourself; or

(b) any director, officer, partner, employee or agent of yourself; or

7. This order must be served by, and be executed under the supervision of, the independent solicitor.

ENTRY, SEARCH AND REMOVAL

8. Subject to paragraphs 10 to 20 below, upon service of this order you must permit members of the search party to enter the premises so that they can carry out the search and other activities referred to in this order.

9. Having permitted members of the search party to enter the premises, you must:

(a) permit them to leave and re-enter the premises on the same and the following day until the search and other activities referred to in this order are complete;

(b) permit them to search for and inspect the listed things and to make or obtain a copy, photograph, film, sample, test or other record of the listed things;

(c) disclose to them the whereabouts of all the listed things in the respondent's possession, custody or power, whether at the premises or otherwise;

(d) disclose to them the whereabouts of all computers, computer disks and electronic information storage devices or systems at the premises in which any documents among the listed things are or may be stored, located or recorded and cause and permit those documents to be printed out;

(e) do all things necessary to enable them to access the listed things, including opening or providing keys to locks and enabling them to access and operate computers and providing them with all necessary passwords;

(f) permit the independent solicitor to remove from the premises into the independent solicitor's custody (including, if necessary, warehouse premises rented by the independent solicitor for this purpose):

(i) the listed things or things which reasonably appear to the independent solicitor to be the listed things and any things the subject of dispute as to whether they are listed things;

(ii) the copies, photographs, films, samples, tests, other records and printed out documents referred to above;

and for that purpose permit, if so directed by the independent solicitor, such vehicle or conveyance to be brought onto the land on which the premises are located together with such persons as may reasonably be required to enable the physical removal of things;

(g) permit the independent computer expert (if there is one) to search any computer and make a copy or digital copy of any computer hard drive and permit the independent computer expert (if any) or the independent solicitor to remove any computer hard drive and computer from the premises as set out in paragraphs 20 and 21 below.

9A. The members of the search party who are employees of the applicant may only do the following things permitted by paragraph 9(b):

(a) inspect the listed things; and

(b) test the listed things,

and only under the direction of the independent solicitors.

RESTRICTIONS ON ENTRY, SEARCH AND REMOVAL

10. This order may not be executed at the same time as a search warrant (or similar process) is executed by the police or by a regulatory authority.

11. You are not required to permit anyone to enter the premises until:

(a) the independent solicitor serves you with copies of this order and any affidavits referred to in Schedule C (confidential exhibits, if any, need not be served until further order of the Court); and

(b) you are given an opportunity to read this order and, if you so request, the independent solicitor explains the terms of this order to you.

12. Before permitting entry to the premises by anyone other than the independent solicitor, you, for a time (not exceeding two hours from the time of service or such longer period as the independent solicitor may permit):

(a) may seek legal advice;

(b) may ask the Court to vary or discharge this order;

(c) (provided you are not a corporation) may gather together any things which you believe may tend to incriminate you or make you liable to a civil penalty and hand them to the independent solicitor in (if you wish) a sealed envelope or container; and

(d) may gather together any documents that passed between you and your lawyers for the purpose of obtaining legal advice or that are otherwise subject to legal professional privilege or client legal privilege, and hand them to the independent solicitor in (if you wish) a sealed envelope or container.

13. Subject to paragraph 22 below, the independent solicitor must not inspect or permit to be inspected by anyone, including the applicant and the applicant's solicitors, any thing handed to the independent solicitor in accordance with subparagraphs 12(c) and (d) above and the independent solicitor must deliver it to the Court at or prior to the hearing on the Return Date.

14. During any period referred to in paragraph 12 above, you must:

(a) inform and keep the independent solicitor informed of the steps being taken;

(b) permit the independent solicitor to enter the premises but not to start the search;

(d) comply with the terms of paragraphs 25 and 26 below.

15. Any thing the subject of a dispute as to whether it is a listed thing must promptly be handed by you to the independent solicitor for safekeeping pending resolution of the dispute or further order of the Court.

16. Before removing any listed things from the premises (other than things referred to in the immediately preceding paragraph), the independent solicitor must supply a list of them to you, give you a reasonable time to check the correctness of the list, and give you and the applicant's solicitors a copy of the list signed by the independent solicitor.

17. The premises must not be searched, and things must not be removed from the premises, except in the presence of you or of a person who appears to the independent solicitor to be your director, officer, partner, employee, agent or other person acting on your behalf or on your instructions.

18. If the independent solicitor is satisfied that full compliance with the immediately preceding paragraph is not reasonably practicable, the independent solicitor may permit the search to proceed and the listed things to be removed without full compliance.

19. The applicant's solicitors and the independent solicitor must not allow the applicant in person to inspect (subject to Order 9A above) or have copies of any thing removed from the premises nor communicate to the applicant information about its contents or about anything observed at the premises until 4:30pm on the Return Date or other time fixed by further order of the Court.

COMPUTERS

20. (a) The search party must include a computer expert who is independent of the applicant and of the applicant's solicitors (`the independent computer expert').

(b) Any search of a computer must be carried out only by the independent computer expert.

(c) The independent computer expert may make a copy or digital copy of the computer hard drive and remove that copy or digital copy from the premises.

(d) The independent computer expert may search the computer or the copy or digital copy of the computer hard drive at the premises and/or away from the premises for listed things and may copy the listed things electronically or in hard copy or both.

(e) The independent computer expert must as soon as practicable and, in any event, prior to the hearing on the Return Date, deliver the copy or digital copy of the computer hard drive and all electronic and hard copies of listed things to the independent solicitor, together with a report of what the independent computer expert has done including a list of such electronic and hard copies.

(f) The independent solicitor must, at or prior to the hearing on the Return Date, deliver to the Court all things received from the independent computer expert and serve a copy of the latter's report on the parties.

(g) If no independent computer expert has been appointed, but the independent solicitor considers it necessary to remove a computer from the premises for safekeeping or for the purpose of copying its contents electronically and printing out information in documentary form, the independent solicitor may remove the computer from the premises for that purpose and cause that purpose to be achieved.

21. (a) Unless you are a corporation, you are entitled to object to paragraphs 20(b) to (f) on the ground that they might tend to incriminate you or make you liable to a civil penalty.

(b) You are also entitled to object to paragraphs 20(b) to (f) on the ground that the computer contains material that is otherwise privileged.

(c) Upon communicating any objection under paragraph (a) or (b) to the independent solicitor, paragraphs 20(b) to (f) become inoperative to the extent that you have objected to them. In that event, if the applicant's solicitor communicates to the independent solicitor that the applicant proposes to contest the objection:

(i) the independent computer expert shall remove the computer hard drive (or, if that is not practicable, the computer) from the premises and deliver it into the custody of the independent solicitor who shall deliver it to the Court at or prior to the Return Date.

(ii) on the Return Date or on another date, the applicant may apply to the Court for orders to similar effect as paragraphs 20(b) to (f) and if you object, the Court may adjudicate upon your objection.

INSPECTION

22. Prior to the Return Date, you or your solicitor or representative shall be entitled, in the presence of the independent solicitor, to inspect any thing removed from the premises and to:

(a) make copies of the same; and

(b) provide the independent solicitor with a signed list of things which are claimed to be privileged or confidential and which you claim ought not to be inspected by the applicant.

PROVISION OF INFORMATION

23. Subject to paragraph 24 below, you must:

(a) at or before the further hearing on the Return Date (or within such further time as the Court may allow) to the best of your ability inform the applicant in writing as to:

(i) the location of the listed things;

(ii) the name and address of everyone who has supplied you, or offered to supply you, with any listed thing;

(iii) the name and address of every person to whom you have supplied, or offered to supply, any listed thing; and

(iv) details of the dates and quantities of every such supply and offer;

(b) within 7 working days after being served with this order, make and serve on the applicant an affidavit setting out the above information, and annexing copies of all order forms, invoices, delivery notes, accounts, receipts and correspondence (including email correspondence) relating to the transactions referred to in sub-paragraph (a) above and which verifies that it sets out all such particulars known to each respondent and that all such documents have been so annexed.

24. (a) This paragraph (24) applies if you are not a corporation and you wish to object that compliance with paragraph 23 may tend to incriminate you or make you liable to a civil penalty.

(b) This paragraph (24) also applies if you are a corporation and all of the persons who are able to comply with paragraph 23 on your behalf and with whom you have been able to communicate, wish to object that compliance may tend to incriminate them or make them liable to a civil penalty.

(c) You must, at or before the further hearing on the Return Date (or within such further time as the Court may allow), notify the applicant in writing that you or all the persons referred to in (b) wish to take such objection and identify the extent of the objection.

(d) If you give such notice, you need comply with paragraph 23 only to the extent, if any, that it is possible to do so without disclosure of the material in respect of which the objection is taken.

(e) If you give such notice, the Court may give directions as to the filing and service of affidavits setting out such matters as you or the persons referred to in (b) wish to place before the Court in support of the objection.

PROHIBITED ACTS

25. Except for the sole purpose of obtaining legal advice, you must not, until 4:30pm on the Return Date, directly or indirectly inform any person of this proceeding or of the contents of this order, or tell any person that a proceeding has been or may be brought against you by the applicant.

26. Until 4:30pm on the Return Date you must not destroy, tamper with, cancel or part with possession, power, custody or control of the listed things otherwise than in accordance with the terms of this order or further order of the Court.

COSTS

27. The costs of this application are reserved to the Judge hearing the application on the Return Date.

INTERLOCUTORY INJUNCTION

28. Up to and including 4:30pm on the Return Date or other time fixed by further order of the Court, you must not, whether by your servants, agents, or otherwise, do any of the following:

(a) reproduce or authorise the reproduction of the whole or any substantial part of any Aristocrat Game Materials without the licence of the Applicant;

(b) manufacture, assemble, sell, offer for sale, supply, offer to supply, distribute or import any Infringing Aristocrat Game Materials or any Gaming Machine which includes or incorporates any Infringing Aristocrat Game Materials;

Schedule A

Premises

The premises located at:

18 Edman Close, Florey ACT 2615; and

22A Rickety Street, Mascot NSW 2020

including any vehicle or vehicles under a respondents' control on or about those premises.

Listed Things

(i) things which are, or appear to be, Infringing Aristocrat Game Materials;

(ii) gaming machines, components for gaming machines, EPROMs, computers, computer hardware and other machines, any digital storage media including without limitation computer disks or diskettes, CD-ROMs or USB drives, computer programs, artwork panels, manuals, documents and similar articles which are, or appear to be, or to include or to incorporate, Infringing Aristocrat Game Materials;

(iii) originals or copies of invoices, receipts, order forms, delivery notes, bank statements, correspondence or other documents or items which relate, or appear to relate to, the copying, assembly, acquisition, importation, purchase, sale, supply, distribution or to the proceeds of sale or distribution of Infringing Aristocrat Game Materials;

(iv) equipment (including EPROM duplicators, CD-R copiers and other computer equipment) is or which appears to have been (or intended to be used for) making Infringing Aristocrat Games Materials; and

(v) any electronically stored information (including, without limitation, emails) which relate or appear to relate to the copying, assembly, acquisition, importation, purchase, sale, supply or distribution or proceeds of sale of Infringing Aristocrat Game Materials.

Search Party

1. The independent solicitors:

(a) Alexandra Duchen, Level 60, Governor Phillip Tower, 1 Farrer Place, Sydney NSW 2000; and

(b) Malcolm Brennan, Level 9 St George Centre, 60 Marcus Clarke Street, Canberra ACT 2601.

2. The applicant's solicitor or solicitors:

(a) Robert Arnold, 50 Bridge Street, Sydney NSW 2000;

(b) Elisabeth Coffey, 50 Bridge Street, Sydney NSW 2000;

(d) Melanie Howlett, 50 Bridge Street, Sydney NSW 2000.

3. Independent computer experts: Rodney David McKemmish and Jason Forsyth

4. Other members of the search party: Dieter Polaczek, Shaun Harrison, Marc Mayo and Malcolm Layton, employees of the applicant in the capacity of technical experts.

Schedule B

Undertakings given to the Court

A. Undertakings given to the Court by the applicant:

A1. The applicant undertakes to submit to such order (if any) as the Court may consider to be just for the payment of compensation (to be assessed by the Court or as it may direct) to any person (whether or not a party) affected by the operation of the order.

A2. The applicant will not, without leave of the Court, use any information, document or thing obtained as a result of the execution of this order for the purpose of any civil or criminal proceeding, either within or outside Australia, other than this proceeding.

A3. The applicant will not inform any other person of the existence of this proceeding except for the purposes of this proceeding until after 4:30pm on the Return Date or other time fixed by further order of the Court.

A4. The applicant will insure the things removed from the premises against loss or damage against fire or acccident under reasonable or usual terms for an amount that reasonably appears to the applicant to be their full value.

A5. The applicant undertakes that employees of the applicant identified in paragraph 4 under the heading "Search Party" in Schedule A and any other employees of the applicant directed by the independent solicitor to assist in the removal of things from the premises, will be directed not to disclose to any other representatives of the applicant any information or the content of any document acquired during or as a result of the execution of this order without leave of the Court.

B. Undertakings given to the Court by the applicant's solicitor

B1. The applicant's solicitors will pay the reasonable costs and disbursements of the independent solicitor and of any independent computer expert.

B2. The applicant's solicitor will provide to the independent solicitor for service on the respondent copies of the following documents:

(a) this order;

(b) the application for this order for hearing on the Return Date;

(i) affidavits (or draft affidavits)

(ii) exhibits capable of being copied (other than confidential exhibits);

(iii) any written submission; and

(iv) any other document that was provided to the Court.

(d) a transcript, or, if none is available, a note, of any exclusively oral allegation of fact that was made and of any exclusively oral submission that was put, to the Court; and

(e) the originating process, or, if none was filed, any draft originating process produced to the Court.

B3. The applicant's solicitor will answer to the best of his or her ability any question as to whether a particular thing is a listed thing.

B4. The applicant's solicitor will use his or her best endeavours to act in conformity with the order and to ensure that the order is executed in a courteous and orderly manner and in a manner that minimises disruption to the respondent.

B5. The applicant's solicitor will not, without leave of the Court, use any information, document or thing obtained as a result of the execution of this order for the purpose of any civil or criminal proceeding, either within or outside Australia, other than this proceeding.

B6. The applicant's solicitor will not inform any other person of the existence of this proceeding except for the purposes of this proceeding until after 4:30pm on the Return Date, or other time fixed by further order of the Court.

B7. The applicant's solicitor will not disclose to the applicant (other than members of the search party) any information that the solicitor acquires during or as a result of execution of the search order, without the leave of the Court.

B8. The applicant's solicitor will use best endeavours to follow all directions of the independent solicitor.

C. Undertakings given to the Court by the independent solicitor

C1. The independent solicitor will use his or her best endeavours to serve the respondent with this order and the other documents referred to in undertaking B2 of the above undertakings by the applicant's solicitor or solicitors.

C2. Before entering the premises, the independent solicitor will:

(a) offer to explain the terms and effect of the search order to the person served with the order and, if the offer is accepted, do so; and

(b) inform the respondent of his or her right to take legal advice.

C3. Subject to undertaking C4 below, the independent solicitor will retain custody of all things removed from the premises by the independent solicitor pursuant to this order until delivery to the Court or further order of the Court.

C4. At or before the hearing on the Return Date, the independent solicitor will provide a written report on the carrying out of the order to the Court and provide a copy to the applicant's solicitors and to the respondent or the respondent's solicitors. The report will attach a copy of any list made pursuant to the order and a copy of any report received from an independent computer expert.

C5. The independent solicitor will use best endeavours to ensure that members of the search party act in conformity with the order and that the order is executed in a courteous and orderly manner and in a manner that minimises disruption to the respondent, and will give such reasonable directions to other members of the search party as are necessary or convenient for the execution of the order.

C6. The independent solicitor will not, without leave of the Court, use any information, document or thing obtained as a result of the execution of this order for the purpose of any civil or criminal proceeding, either within or outside Australia, other than this proceeding.

C7. The independent solicitor will not inform any other person of the existence of this proceeding except for the purposes of this proceeding until after 4:30pm on the Return Date, or other time fixed by further order of the Court.

D. Undertakings given to the Court by the independent computer expert

D1. The independent computer expert will use his or her best endeavours to act in conformity with the order and to ensure that the order, so far as it concerns the independent computer expert, is execute in a courteous and orderly manner and in a manner that minimises disruption to the respondent.

D2. The independent computer expert will not, without leave of the Court, use any information, document or thing obtained as a result of the execution of this order for the purpose of any civil or criminal proceeding, either within or outside Australia, other than this proceeding.

D3. The independent computer expert will not inform any other person of the existence of this proceeding except for the purposes of this proceeding until after 4:30pm on the Return Date.

D4. The independent computer expert will use best endeavours to follow all directions of the independent solicitor.

Schedule C

Affidavits relied on

Name of Deponent Date affidavit made

1. Heather Ann Tropman 30 June 2006

2. Garry David Coster 28 June 2006

3. Robert Anthony Arnold 30 June 2006

NAME AND ADDRESS OF APPLICANT'S SOLICITORS

The Applicant's solicitors are:

Baker & McKenzie Solicitors

50 Bridge Street

Sydney NSW 2000

Tel: 9225 0200

Fax: 9225 1595

Schedule 1

Aristocrat Games

4 PLAY

5 DRAGONS

5:1 THE FIELD

50 LIONS

6 PACK

7’s

9 LIVES

A FISTFUL OF FREE GAMES

ACE

ACE IN THE HOLE

ACE OF CLUBS

ACES

ACES II

ACTION ACES

ACTION PACKED

ACTION REPLAY

ACTION TIME

ADONIS

AFRICAN DUSK

ALCHEMIST

ALCHEMY

ALOHA

AMAZON

AMAZON QUEEN

ANTONY & CLEOPATRA

APACHE GOLD

ARABIAN NIGHTS

ARCTIC WINS

ARISHINKO

ASTRONAUT

ATLANTIS

AUTUMN MOON

AVALANCHE

AZTEC CHIEF

AZTEC GOLD

AZTEC QUEEN

BANKER (THE)

BEAR ESSENTIALS

BEST & FAIREST

BETCHA

BIG 5 (THE)

BIG APPLE (THE)

BIG BEN

BIG CATS

BIG DEAL

BIG HEARTED

BIG RED

BIG TIME

BIRD OF PARADISE

BIZZY BEE

BIZZY BEE II

BJ BLITZ BLACKJACK

BLACK BRUMBY

BLACK PANTHER

BLACK PEARL

BLACK RHINO

BLACKJACK

BOB AND DOLLY

BOBBY DAZZLER

BONUS

BONUS POKER

BONUS WHEEL

BOOKMAKER

BOOMERANG

BOOSTER BUCKS

BOOT SCOOTIN’

BRAZIL

BRING HOME BACON

BRONZED AUSSIE

BUCCANEER

BUMBLE BUGS

BUMPER CATCH

BUNGEE CHOOK

BURNING DESIRE

BUSHRANGER

BUTTERFLY

BUTTERFLY DELIGHT

BUZZARD BUCKS

CAESAR'S RANSOM

CALYPSO

CALYPSO KING

CANYON ROSE

CAPITAL BONUS

CAPITAL GAIN

CAPTAIN COMBO

CARNIVAL

CAROUSEL

CASH CAROUSEL

CASH CAT

CASH CHAMELEON

CASH CROP

CASH FLOW

CASH SPLASH

CASHCADE

CASHIER (THE)

CASHMAN TONIGHT

CASINO ROYALE

CELTIC WARRIOR

CENTRE STAGE

CENTURION

CHAIN REACTION

CHAMPION

CHARIOT CHALLENGE

CHECKMATE

CHICKEN

CHIEFTAIN

CHOY SUN DOA

CLOCKWISE

CLOWN BINGO

COLOSSUS

COME ALIVE

CONQUEST

COOL CASH

CORAL RICHES

CORAL RICHES II

CORRIDA DE TOROS

COSMIC CASH

COUNTDOWN

CRAZY BALLS

CRAZY JOKER

CRITTERS

CRUSADER

CRYSTAL SPRINGS

CUCKOO

CURRENCY MARKET

DAILY DOUBLES

DARK HORSE

DELTA GOLD

DELTA QUEEN

DESERT BLOOM

DESERT GOLD

DIAMOND DOVE

DIAMOND EYES

DIAMOND FEVER

DIAMOND TOUCH

DIAMONDS & PEARLS

DIAMONDS FOREVER

DINOMIGHT

DINOSAUR

DIXIE

DOLLAR ACTION

DOLLAR DROP

DOLLAR KING

DOLLAR TREE

DOLLARADO

DOLLARS

DOLPHIN TREASURE

DOLPHIN TREASURE DELUXE

DOUBLE ACTION

DOUBLE ACTION 2 UP

DOUBLE AGENT

DOUBLE BARREL

DOUBLE DEAL

DOUBLE DECKER

DOUBLE DOLPHINS

DOUBLE FEATURE

DOUBLE TAKE

DOUBLE TIME

DOUBLE UP

DOUBLE WILD BAR

DOUBLET

DRAGON

DRAGON LORD

DRAGON'S EYE

DRAW CARD

DRAW POKER

DREAM BOAT

DREAM CATCHER

DREAM WEAVER

DUO

DYNAMITE JACK

EACH WAY INCAS

EACH WAY NUDGER

EAGLE ROCK

EASY STREET

EIGHT BALL

EL DORADO

EMERALD CITY

EMPRESS

ENCHANTED FOREST

ENCHANTRESS

ENDEAVOUR

ENTERTAINER (THE)

EXCALIBUR

EXOTICA

EXPLORER

EXTRA 2 BALL BINGO

EXTRA!

EYES OF THE TIGER

FABULOUS 4

FABULOUS 50'S

FAIR GO

FANCY FREE

FANTASTIC

FANTASY FORTUNE

FAST FORTUNE

FAVOURITE ONE

FEVER PITCH

FIND THE LADY

FIRE DANCER

FIREBALL

FIVE LINE JACKPOT

FIVE LINE SPECIAL

FIVE REEL WINNER

FLAME OF OLYMPUS

FLAMING ARROW

FLAMINGO

FOLLOW THE STARS

FORMULA ONE

FORTUNE

FORTUNE HUNTER

FORTUNE TELLER

FOUR REEL FUN

FOUR REEL SPECIAL

FOUR SCORE

FOUR UP

FREE BEE

FREE BEE 5 cent

FREE KICK

FREE 'N EASY

FREE THROW

FREEWAY

FRONTIER

FULL HAND

FUNMAKER

GAMBLIN' JACK

GAME WITH NO NAME! (THE)

GATOR GOLD

GEISHA

GENGHIS KHAN

GENIE GOLD

GENIE MAGIC

GI CLASSIC SPECIAL

GNOME AROUND THE WORLD

GO APE

GO FOR GOLD

GO FOR GREEN

GODDESS OF LOVE

GOLD A GO GO

GOLD AWARD

GOLD BULLION

GOLD CUP

GOLD FEVER

GOLD GALLEON

GOLD MEDAL

GOLDEN APPLE

GOLDEN ARCHER

GOLDEN BOUNTY

GOLDEN CANARIES

GOLDEN CANARIES II (Lucky Devil)

GOLDEN FLEECE (THE)

GOLDEN GATE

GOLDEN GONG (THE)

GOLDEN GOOSE

GOLDEN GOOSESPINS

GOLDEN HARVEST

GOLDEN INCAS

GOLDEN POKER

GOLDEN PYRAMIDS

GOLDEN PYRAMIDS SPECIAL EDITION

GOLDEN RA

GOLDEN TOUCH

GOLDMINE

GOLDMINE II

GONE TROPPO

GOOD FORTUNE

GRAND CHAMPION

GRAND PRIX

GRAND RAPIDS

GRAND RAPIDS II

GRAND SLAM

GREEN & GOLD

GREEN LIZARD

HAPPY DAYS

HAPPY GO LUCKY

HARLEQUIN

HARMONY

HARVEST

HARVEST FESTIVAL

HARVEST TIME

HAT TRICK

HEART OF GOLD

HEART THROB

HEATWAVE

HELEN OF TROY

HI DOLLY

HI FLYER

HIGH CARD

HIGH NOON

HIGH SEAS

HIGH STAKES

HIGHLAND REEL

HIT THE HEIGHTS

HOLD YOUR HORSES

HOLE IN ONE

HOLIDAY

HOLLYWOOD DREAMS

HONEY BEE

HONEY MONEY

HONEY POT

HONEYMOON

HORIZON

HOT $

HOT CANARY

HOT CASH

HOT REELS

HOT SHOT

HOUSE OF HEARTS

HUMDINGER

IDOL RICHES

INCA CHIEF

INCA GOLD

INCA KING

INCA MAGIC

INCA RICHES

INCA ROYAL

INCA SUN

INCA TREASURE

INCA WARRIOR

INDIAN CHIEF

INDIAN DREAMING

INDIAN DREAMING 2ND CHANCE

INDIAN DREAMING II

INDIAN GOLD (Mr Cashman)

INDIAN PRINCESS

IRISH DELIGHT

ISLAND DELIGHT

IT'S TIME

JACK HIGH

JACKPOT SPECIAL

JAILBIRD (Mr. Cashman)

JAILBREAK

JAILHOUSE ROCK

JESTER

JOKER IS WILD (THE)

JOKERS GALORE

JOKERS GALORE II

JOLLY GIANT

JOLLY JOKER

JUMBO 4

JUMBO JACKPOTS

JUMPIN’ JOEY’S

JUMPING BEANS

JUNGLE JUICE

K. G. BIRD

KAKADU DREAMING

KARAT PATCH

KEEP YOUR HAT ON

KENTUCKY

KENYAN GOLD

KING GALAH

KING NEPTUNE

KING OF CLUBS

KING OF THE NILE

KING PENGUIN

KING'S RANSOM

KOALA MINT

KOHINOOR MOUNTAIN OF LIGHT

KOOKA BUCKS

L.A. GATOR

LADY LUCK

LADY OF FORTUNE

LET'S PARTY

LIGHTNING

LIGHTNING STRIKE ROULETTE

LINE KING

LION’S SHARE

LOCO LOOT

LONE STAR

LONE WOLF

LOONEY 7’S

LOOSE GOOSE

LORD LEOPARD

LOUIE’S GOLD (Mr. Cashman)

LOVE & MARRIAGE

LOVE BIRDS

LUCK OF THE IRISH

LUCKY BUCKS

LUCKY BUCKS II

LUCKY BUG

LUCKY CLOVER

LUCKY DEVIL

LUCKY STARS

LUCKY STREAK

LUCKY STRIKE

LUCKY STRIKE II

LUXURY LINES

MAGIC KISS

MAGIC MASK

MAGIC TIME

MAGIC TOUCH

MAGICIAN (The)

MAH JONG

MAMMOTH MONEY

MARGARITA MAGIC

MARLIN MAGIC (Lady Luck)

MATILDA

MERCHANT BANKER

MIDAS MILLIONS

MIGHTY MONEY

MINE MINE MINE

MIRROR MONEY

MONARCH

MONEY EXPRESS

MONEY MACHINE

MONEY MAGIC

MONEY MAGICIAN

MONEY MAKER

MONEY MOUSE

MONEY OR THE BOX

MONEY TREE

MONKEY BUSINESS

MOON FESTIVAL

MOON FIRE

MOONLIGHT

MOROCCAN GOLD

MOUNTAIN MONEY

MR CASHMAN

MYSTIC CHIEF

MYSTIC EYES (Mr Cashman)

MYSTIC FOREST

MYSTIC GARDEN

MYSTIC MERMAID

MYSTIQUE

NERDS GONE WILD!

NITRO NELLIE

NUDGER

OASIS

ODDS ON

ODIN’S REIGN

OLD GOLD

ONE FOR ALL

OPEN SESAME

ORCHID MAGIC

ORCHID MIST

OSCAR

OUTBACK JACK

OVERS & UNDERS

OWL CAPONE

PARIS LIGHTS

PARK LANE

PAY DAY

PEACOCK FLUTTER

PEACOCK MAGIC

PELICAN PETE

PENGUIN PAYS

PENGUIN PIRATE

PENGUIN PIRATE II

PESO PALACE

PET SHOP

PHANTOM PAYS

PHANTOM PAYS CLASSIC

PHARAOHS FORTUNE

PHOENIX FANTASY

PIECE OF CAKE

PIRATES

PLAYER’S CHOICE – Favourites

PLAYER’S CHOICE – Original

PLAYER’S CHOICE - Super

PLUM CRAZY

PLUS 4

POMPEII

POW WOW

POWDER KEG

POWER PAY

PRIDE OF AFRICA

PRIZE FIGHT

PROPHECY

PROSPECTOR

PROSPERITY

PUNTER'S CHOICE

PUNTER'S NUDGER

PURE GOLD

PUSHOVER

PUTTING ON THE RITZ

PYRAMID MAGIC

PYRAMID POWER

Q.T. BIRD

QANTASTIC

QUADREEL

QUARTETTE

QUEEN OF HEARTS

QUEEN OF SHEBA

QUEEN OF THE NILE

QUEEN OF THE NILE DELUXE

QUEEN OF THE NILE II

QUEEN OF THE NILE SPECIAL EDITION

QUEENS OF CASH

QUINTETTE

QUIZ NITE

RACING GAME (THE)

RAGTIME

RAINBOW WARRIORS

RAINBOWS END

RAINDROPS

RAMBLING ROSE

RANDOM HARVEST

RAPID JACKPOTS

RAPID JACKPOTS II

RAPID REWARD

RAPID RICHES

RAWHIDE

REBEL YELL

RED BARON

REEL POWER

REEL WINNER

REELIN ‘N ROCKIN

RETURN OF THE SAMURAI

RICH RIVER

RIVERBOAT KING

RIVERBOAT QUEEN

RODEO

ROLL UP! ROLL UP!

ROMAN HOLIDAY

ROULETTE – LIGHTNING STRIKE

ROUTE 66

ROYAL ASCOT

ROYAL BOUNTY

ROYAL MINT

ROYAL WINNA

RUBY MAGIC

RUSHIN' ROOSTER

SAFARI

SAMURAI

SCATTER MAGIC

SCATTER MAGIC II

SCATTER MAGIC III

SCATTER ROOS

SCATTERBRAIN

SCRATCH 'n MATCH

SEAL THE DEAL

SEVEN UP

SHARP SHOOTER

SHOW ME THE MONEY

SHOWBOAT GAMBLER

SHOWBOAT SPECIAL

SHOWDOWN

SILK ROAD

SILVER & GOLD

SILVER CLOUD

SILVER FALLS

SILVER FLEET(Megastar)

SILVER FOX

SILVER STREAK

SILVER WOLF

SIX REEL WINNER

SKY RAIDER

SNAP SHOT

SNOWBALL

SNOWCAT

SOLID GOLD

SPIN A FORTUNE

SPORTING CHANCE GAMES

SPRING CARNIVAL

SPUN GOLD

ST. MORITZ

STABLE MATES

STABLEMATES

STAR ATTRACTION

STAR DRIFTER

STAR QUEST

STARDUST

STARLITE

STOOGES

STOP THE CLOCK

STRAIGHT ACE

STRIKE A LIGHT

STRIKE ME LUCKY

SUEPR BUCKS IV

SUGAR & SPICE

SUMO SPINS

SUN CHIEF

SUN KING

SUN QUEEN

SUNDANCER

SUNSET PARADISE (Mr. Cashman)

SUPER BLACK PEARL

SUPER BUCKS

SUPER BUCKS II

SUPER BUCKS III

SUPER BUCKS V

SUPER GOLD AWARD

SUPER GOOSE

SUPER HERO

SUPER JACKPOTS

SUPER QUADREEL

SUPER QUARTETTE

SUPER QUINTETTE

SUPER RAPIDS

SUPER SCATTEROOS

SUPER SLOTS

SUPER STAR

SUPER TRIPLE 7’S

SUPER TWO UP

SURE SHOT

SURF SUN FUN

SURPRIZE

SWEET & SOUR

SWEET DREAMS

SWEET REWARD

SWEET SUCCESS

SWEETHEARTS

SWEETHEARTS II

SWEETHEARTS II (Lucky Devil)

SWELL SURPRISE

SYSTEM 7

TAKE FIVE

TALENT SCOUT

TARTAN TREASURE

TEMPTATION

TEQUILA SUNRISE

THAI PRINCESS

THE ORIGINAL INDIAN DREAMING

THE ORIGINAL QUEEN OF THE NILE

THOR

THREE BAGS FULL

THREE COINS IN A FOUNTAIN

THREE LINE 2 UP

THREE WAY WIN

THREEE UP

THUNDER HEART

TIC TAC TOE

TIKI TORCH

TOP 10

TOP BANANA

TOP BRASS

TOP BUCK

TOP DOLLAR

TOP FORM

TOP GEAR

TOP GOLD AWARD

TOP KNOT

TOP SCORE

TOP SHOT

TOP SPOT

TORCH OF THE GODS

TOSS UP

TOTEM

TOUCAN TANGO

TOUCH OF GOLD

TOUCH OF PARADICE

TREASURE

TREASURE (THE)

TREASURE ISLAND

TREASURE TROVE

TRICK OR TREAT

TRIGGER HAPPY

TRIPLE EAGLE

TRIPLE JOKERS

TRIPLE PAYS

TRIPLE POWER

TRIPLE TREAT

TRIPLET

TROJAN HORSE

TROPICAL DELIGHT

TRUMPS

TWIN NUDGER

TWO BOB

TWO FOR ONE

TWO UP

TWO UP DOLLAR

UNICORN DREAMING

VENETIAN NIGHTS

VENICE

VENUS

VIKING QUEST

WAY TO GO

WEE LASSIE

WHACKO

WHALES OF CASH

WHERE’S THE GOLD

WHITE TIGER

WHITE TIGER CLASSIC

WHITE TIGER II (Lucky Devil)

WICKED WINNINGS

WILD (THE)

WILD ACES

WILD AFRICA

WILD AMAZON

WILD AMAZON II

WILD ANGELS

WILD BALL BINGO

WILD BILL

WILD CAT

WILD COUGAR

WILD COUNTRY

WILD COYOTE

WILD FIRE

WILD FLOWERS

WILD GOOSE

WILD HEARTS

WILD LIFE

WILD ONE

WILD PANTHER

WILD PEACOCK

WILD STAR

WILD THING

WILD WAYS

WILD WEST

WIN

WIN MILLS

WIN STORM

WINDMILLS

WINGS OVER OLYMPUS

WINNER

WINNER’S CHEQUE

WINNERS CIRCLE

WINNING POST

WINNING STREAK

WINNING WAYS

WISHBONE

WIZARD

WIZARD MISSING

WIZARD WAYS

WONDER WHEELS

WONDERWORLD

WORKERS SPECIAL

WUNDERBIRD

YUKON GOLD

ZORRO

ZORRO II

ZORRO UNMASK

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1271 of 2006

BETWEEN:

ARISTOCRAT TECHNOLOGIES AUSTRALIA PTY LIMITED

APPLICANT

AND:

GLOBAL GAMING PTY LIMITED

FIRST RESPONDENT

ANTHONY EDWARD ANDREWS

SECOND RESPONDENT

JUDGE:	ALLSOP J
DATE:	30 JUNE 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 On reading the affidavits of Heather Ann Tropman, Gary David Coster and Robert Anthony Arnold, and hearing counsel, I am, subject to comments I make in a moment, satisfied that it is appropriate to make orders in the form amended and initialled by me, being based on the power expressly provided for in Order 25B of the Federal Court Rules and dealt with by way of practice note 24 dealing with search orders.

2 The requirements for the grant of the search order set out in Order 25B rule 3 require that the applicant show that it has a strong prima facie case on an accrued cause of action.

3 I am satisfied on the level of ex parte relief that there is a strong prima facie case on an accrued cause of action in relation to what appeared to be counterfeited goods or goods that breach copyright, being gambling machines, their artwork and associated computer software which appear to have been sold to parties in Peru by at least the first respondent, such transactions involving the second respondent in 2002. There is an explanation in the material as to why this has not been discovered which it is unnecessary to recount.

4 There is material which links the named respondents, though not in a conclusive way in terms of breach of copyright, to various parties who have been found to have breached the same species of copyright in the past in the manufacture and sale of gaming machines, copyright of which is owned by the applicant.

5 I am satisfied, at this level of analysis, that it is likely that the applicant will be able to show its copyright in relation to its gaming machines and the associated aspects of them.

6 There is an issue that may be ventilated in due course as to the necessity for the search to be closely related to the accrued cause of action. I think the better reading of O 25B, and not having had the assistance of opposing counsel, is the one put to me by Mr Cobden that the flexibility and amplitude of O 25B r 3 would be undermined if one read the search order as limited to the precise cause of action known.

7 Very often a wide number of apparent breaches are evident in these sorts of cases. It is not, however, the practice that I am aware of either in this Court, in this country or overseas in like jurisdictions, to limit the terms of the order to searching for and seizing only documents or material directly related to the precise causes of action known. Such a course would tend to make the utility of this procedure doubtful. It is not a procedure lightly to be invoked. Nevertheless, if appropriate foundation is laid for it, it should not be so framed as to make its utilisation overly complex and technical.

8 In those circumstances, I am prepared to make the orders sought with the limitation that one finds on the search in the definition of “Listed Things” in Schedule A. Appropriate provision according to the practice note has been made for independent solicitors and an independent computer expert. I have varied the usual practice note form to allow some participation by employees of the applicant in circumstances of close supervision by the independent solicitor and the computer expert.

9 I have also granted an interlocutory injunction in terms of paragraph 28 of the order up to and including 4.30 pm on the return date. Given the matters that have been proved, I accept Mr Cobden's submissions that this is appropriate.

10 The return date will be 5 July 2006, and the matter will be listed before Rares J, the Duty Judge on that day, at 9.30 am.

11 I have already made an order to the extent that it is appropriate and necessary to Auscript, to take all steps practicable to have the transcript of discussion of counsel this afternoon and my short reasons available by 9 am on Monday, 3 July 2006 so that they can be served.

12 I permit and direct Auscript to release the transcript of the judgment before settling in final form by myself in chambers.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.

Associate:

Dated: 17 July 2006

Counsel for the Applicant:	Mr R Cobden SC

Solicitor for the Applicant:	Baker & McKenzie

Date of Hearing:	30 June 2006

Date of Judgment:	30 June 2006

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