FEDERAL COURT OF AUSTRALIA

Biomax Technologies Pte Ltd v Jabiru Agribusiness (Aust) Pty Ltd (No 2) [2016] FCA 600

ORDERS

THE COURT ORDERS THAT:

1.    The orders entered as at 5 February 2016 be varied by:

(a)    deleting in the chapeau of the orders, the words “it be declared that”;

(b)    inserting the words “It be declared that” at the beginning of the chapeau to order 3; and

(c)    deleting order 3(c) and inserting a new order 4 as follows:

4.    It be declared that in the period between 7 August 2012 and 28 May 2013, by authorising the reproduction in material form, publication and communication to the public on the website <biocomplete.com.au>, of the applicant’s copyright works identified in Schedule 1 of these orders (or a substantial part thereof) without the licence or authority of the applicant, the second respondent infringed the applicant’s copyright that subsists in the applicant’s copyright works.

2.    The proceedings be referred to mediation by the registrar, on a date to be fixed by the registrar, to occur on or before 30 June 2016.

3.    The matter be listed for directions on 8 July 2016.

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

REASONS FOR JUDGMENT (REVISED FROM THE TRANSCRIPT)

RARES J:

1    On 5 February 2016 I gave ex tempore reasons for making orders to enter default judgment against the first and second respondents: see Biomax Technologies Pte Limited v Jabiru Agribusiness (Aust) Pty Limited [2016] FCA 505.

2    At the conclusion of that hearing, I directed the lawyers for Biomax to send to my associate the draft orders that were to include images that constituted the breaches of copyright that I had found had persisted to 28 May 2013, on the evidence then before me. I also explained my findings why those infringements were flagrant: Biomax [2016] FCA 505 at [17] and [21].

3    On about 19 February 2015, for the purpose of settling the form of those orders, the solicitors for Biomax furnished copies of the images that needed to be included. However, when I settled order 3(c), I inadvertently conflated the longer period of infringement by the second respondent, Mr Beazleigh, that I had found in my reasons to the more limited period during which I found Jabiru, the first respondent, to have been in breach of its contract with Biomax. That occurred because I inadvertently included order 3(c), under the chapeau at the top of order 3, namely:

During the period between 7 August 2012 and 16 January 2013.

4    That did not reflect my intention to record my findings about the breaches of copyright as continuing for a longer period than that of the breaches of contract reflected in order 3(a) and (b). I also erred in including in the chapeau to all of the orders the words “it be declared that” which should have been included only in the chapeau to order 3.

5    As my reasons of 5 February 2016 made clear, I was satisfied, and found, that the flagrant breaches of copyright committed by Mr Beazleigh, had continued on the evidence to 28 May 2013, being after the termination on 16 January 2013 of the agency agreement between Biomax and Jabiru.

6    Biomax has asked that I correct, pursuant to the slip rule in the Court’s inherent jurisdiction or r 39.05(e) of the Federal Court Rules 2011 (Cth), the orders of 5 February 2016 so that they truly represent what I intended to pronounce on that date.

Consideration

7    The power to correct entered orders under the slip rule is narrow and strictly confined as Gummow ACJ, Hayne, Heydon, Crennan and Kiefel JJ explained in Burrell v The Queen (2008) 238 CLR 218 at 224-225 [18]-[21]. Their Honours explained the distinction between a court order having been made because the court made an error in arriving at the result it intended to record in the orders, on the one hand, and an error in what the orders recorded as the result that the court actually intended to achieve. In the latter, but not the former, case a superior court of record may correct its orders so as truly to represent what the court either pronounced or intended to pronounce as its order: Burrell 238 CLR at 224 [21]. Their Honours there referred to the decision of Mason ACJ, Wilson and Deane JJ in L Shaddock and Associates Pty Limited v Parramatta City Council [No 2] (1982) 151 CLR 590 at 594-595 where the Court held that a party’s omission, to apply for an order for interest payable on a judgment sum that had been entered earlier by the High Court without including any interest, was able to be corrected under the slip rule. They said that:

… but for the inadvertence of counsel for the applicants, this Court would have made provision in the substituted judgment of [the trial judge] for interest on the damages in respect of the relevant period.

8    They held that the Court has an inherent jurisdiction “at any time to correct an error in a decree or order arising from a slip or accidental omission”, including an omission resulting from the inadvertence of a party’s legal representative.

9    The declaration of the breach of copyright that I intended to make on 5 February 2016 related to the period that was proved in evidence and to which I twice referred as being flagrant in my reasons on that day: Biomax [2016] FCA 505 at [17] and [21].

10    For these reasons, I am satisfied that I have jurisdiction to correct the record of the Court in the orders entered as of 5 February 2016 so as to reflect what I intended on that day to order, because the orders, as entered, do not correctly reflect that intention.

11    In my opinion, I should make orders that the orders made on 5 February 2016 be varied so as to:

(a)    delete the words “it be declared” in the chapeau to the orders and to insert those words at the commencement of order 3;

(b)    delete enumeration (c) in order 3 and to insert at the commencement of what had appeared as order 3(c):

“4     It be declared that during the period between 7 August 2012 and 28 May 2013.”

12    That will mean that there will be a fourth order reflecting, for the longer period, the declaration that had previously been order 3(c) in respect of the breaches of copyright that I had found and intended to declare had occurred in that period when I made the earlier orders. I will also order that the form in which the orders of 5 February 2016, that now appear as part of the Court’s record, be corrected so as to reflect what I have ordered today.

Associate:

Dated:    26 May 2016