Case: First Netcom Pty Ltd v Telstra Corporation Ltd [2000] FCA 1269 ; (2000) 101 FCR 77
Outcome: referred to
The occasioning of ongoing loss to TV Plus , if TV Plus was to be relevantly enjoined in this interlocutory proceeding at the instance of UBI , was asserted by TV Plus to be 'considerable and would potentially threaten its whole undertaking', for the following reasons set out in Mr Jeremic's affidavit evidence ( TV Plus used the anglicised description therein of PBS rather than JRTS in those submissions, but for consistency in these reasons I have at least for the most part maintained reference to JRTS ): (i) its primary subscription base involves the Balkan States and approximately 90% of its revenue is derived by reference thereto; (ii) the BHT-1 broadcasts are a significant part of the so-called 'Balkans package' offered by TV Plus and there are close linguistic similarities between broadcasts from each of Bosnia, Serbia and Macedonia, being a factor which has the consequence that the BHT-1 broadcasts are not just taken up by members of the Bosnian community in Australia; (iii) restraining TV Plus from broadcasting BHT-1 would place the TV Plus in breach of its contractual obligations to its subscribers, since it would no longer be able to offer BHT-1 as part of its Balkans package; Mr Jeremic estimated that there would be cancellations of approximately 1,500 subscribers (out of its approximate 3000 subscriber base) with a consequential loss of revenue to TV Plus of $100,000 per month; (iv) Mr Jeremic also estimated a further loss of 350 subscribers likely to be sustained by its so-called website streaming platform amounting to $22,750 per month, so much involving more than a 50% reduction in the TV Plus' income flow; (v) enjoining TV Plus to the extent proposed would lead to staff reductions and cancellations of service contracts, both in Australia and abroad, and would alone jeopardise the survival of TV Plus ; (vi) there have also been threats to the TV Plus service providers, such as to Globecast Australia ( ante ); though I should observe that the nature and extent of those threats were not indicated, nor evidence adduced from an officer of Globecast in that regard, despite the extent otherwise of evidence tendered by TV Plus already; (vii) the evidence was said to suggest that UBI does not have the financial resources to meet any undertakings as to damages necessary in order for UBI to obtain interlocutory relief, TV Plus referring thereby to UBI's paid up share capital apparently comprising merely one share of $1 par value, and to its membership being confined to one person (Ms Regina Boulos), yet UBI's assets were subject to a registered charge to secure up to $60 million over all of its undertaking and assets; moreover no balance sheets or profit and loss accounts of UBI had been produced or made available to TV Plus ; accordingly no injunction should be granted in any event until an undertaking could be given by a natural person individually, such as the sole director and member presently of UBI earlier recorded Ms Boulos; I was referred in that context to Select Personnel Pty Ltd v Morgan and Banks Pty Ltd (1988) 12 IPR 167, cited with approval by the Full Court of this Court in First Netcom Pty Ltd v Telstra Corporation Ltd [2000] FCA 1269 ; (2000) 101 FCR 77 at [23] - [24] , and also to Permanent Promotions Pty Ltd v Independent Distillers (Aust) Pty Ltd (2004) 62 IPR 538 at [25-26]; (viii) the notice to produce which had been issued by TV Plus to UBI was said to have been in the following terms: (a) the minutes of board meetings of the applicant for 2005 and 2006; (b) the most current balance sheet and profit and loss statement of the applicant; and (c) all subscription agreements entered into by customers of the applicant for its Balkan Bouquet package between July 2006 and 6 December 2006, and no such material had been as yet produced to the Court.