FEDERAL COURT OF AUSTRALIA

Bell v Steele (No 2) [2012] FCA 62

THE COURT ORDERS THAT:

1.    The respondent being properly served pursuant to the order of 6 December 2011 and not having filed a defence, the judgment of the court is that:

(a)    the applicant is the owner of the copyright in the raw footage for a cinematographic film entitled “The Blackfella’s Guide to New York” as referred to in the statement of claim;

(b)    the applicant is the owner of the copyright in the trailer for a cinematographic film entitled “The Blackfella’s Guide to New York” as referred to in the statement of claim;

(c)    the respondent’s threat of legal proceedings in relation to copyright infringement is unjustifiable pursuant to s 202(1) of the Copyright Act 1968 (Cth).

2.    The respondent pay the applicant’s costs of and incidental to the proceedings.

3.    The applicant file evidence as to quantum of damages pursuant to s 202(1) of the Copyright Act 1968 (Cth), and costs by 16 February 2012.

4.    The matter be set down for hearing as to quantum of damages pursuant to s 202(1) of the Copyright Act 1968 (Cth) and costs for half (½) a day at 10.15 am on 13 March 2012.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    In court this morning, Mr John Swinson, the solicitor for the applicant in these proceedings, sought orders on behalf of the applicant pursuant to r 5.23(2)(c) and (d) of the Federal Court Rules that judgment be entered for the applicant. The primary reason for the orders sought is that the respondent has not filed a Defence, notwithstanding my order of 6 December 2011 that the respondent file a Defence on or before 27 January 2012.

2    I note that no contact has been made by the respondent with the Court.

3    The relevant Federal Court Rules provide as follows:

If a respondent is in default, an applicant may apply to the Court for:

…

(c)    if the proceeding was started by an originating application supported by a statement of claim or if the court has ordered that the proceeding continued on pleadings, an order giving judgment against the respondent for the relief claimed in the statement of claim to which the court is satisfied that the applicant is entitled; or

(d)    an order giving judgment against the respondent for damages to be assessed, or any other order.

4    In support of this application for default judgment, an affidavit sworn by Mr Swinson was filed on 7 February 2012.

5    The original application in this proceeding was filed by the applicant on 24 October 2011. The applicant sought declarations and damages against the respondent under the Copyright Act 1968 (Cth) arising from claimed contraventions of s 202(1) of the Copyright Act.

6    The background to this proceeding may be summarised as follows.

7    The applicant is an artist based in Australia. The respondent is based in Brooklyn, New York in the United States of America. I understand the respondent currently lives in Brooklyn.

8    Between June 2009 and September 2011, the applicant made all arrangements necessary for the making of a film, amounting to approximately 18 hours of raw footage, known as “The Blackfella’s Guide to New York” and a short trailer.

9    The applicant intended to use the footage to create a short film to be shown in art galleries. The applicant engaged the respondent to assist the applicant in the making of this footage while he was in New York. The applicant claims that the respondent knew the applicant was making the footage to be used in a film to be shown in art galleries.

10    The applicant claims that he intended to be the producer and director of the film and to incorporate the footage. The cost to the applicant of making the footage is claimed at A$43,000 plus interest. The applicant claims that he paid the respondent $4,000 on 21 June 2010 for her services, and that he also gave the respondent a painting valued at $20,000 for her services. The applicant paid for all boat, camera and car hire as well as film and editor fees associated with the film.

11    The trailer made by the applicant was first published when it was distributed to Milani Gallery in Woolloongabba on 10 September 2011.

12    In correspondence annexed to the affidavit of Mr Swinson sworn 2 December 2011 the respondent claims that she owns copyright in the footage in the trailer and demanded that the trailer be removed from public exhibition. The respondent and her legal representative, Pilsbury Winthrop Shaw Pittman LLP, emailed the Milani Gallery owner as well as the applicant and applicant’s lawyers to that effect.

13    As a result of these steps, the trailer was removed from public exhibition and display. The applicant claims that this has caused him financial loss, and has sought declarations that he is the owner of the relevant footage.

14    An interlocutory application was filed by the applicant on 5 December 2011 seeking leave to serve relevant documentation on the respondent outside Australia. On 6 December 2011, I gave judgment permitting the applicant to serve on the respondent the originating application and statement of claim dated 21 October 2011, the interlocutory application, and an affidavit of Mr Swinson sworn 2 December 2011.

15    In his affidavit filed 6 February 2012 Mr Swinson deposes as to the steps taken to serve this material on the respondent by international express courier and by ordinary post. Mr Swinson also deposes that the respondent has filed proceedings in the US district court – Southern District of New York, relating to the dispute between the parties.

16    Mr Swinson deposes that he has received communications from the US attorney engaged by the respondent in the US district court proceeding to the effect that the respondent does not intend to appear in a Federal Court of Australia proceeding.

17    Ordering judgment in default is not a step to be taken lightly. In this case however, despite the facts that the respondent has been served with originating process and apparently has the resources to brief legal representation in the United States, she has chosen not to file a Defence in this Court. No reason for this course of action has been provided to the Court by the respondent.

18    The only evidence before the Court is that supportive of the applicant’s claim as pleaded in the originating application and statement of claim filed on the respondent.

19    In the circumstances I am satisfied that it is appropriate to make the orders sought by the applicant.

Associate:

Dated:    15 February 2012